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KD 1762 C HlT UniVerSity Ubrary 
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Cornell University 

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the Cornell University Library. 

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the United States on the use of the text. 






Thesis approved for the Degree of Doctor of Laws 
in the University of London 






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The subject of Lien has received little attention 
of recent years, and with, the exception of Titles on 
this subject in various Legal Encyclopaedias no 
collected work on the subject has been published 
in this country since the " Treatise on the Law of 
Lien " of Mr. John Cross in 1840. 

It is true that the subject has not now the same 
practical importance it had at the end of the 
eighteenth and the beginning of the nineteenth 
centuries; but cases do arise in the course of 
practice, and I hope that this volume may be of use, 
not only to the Student, but also to the Practitioner. 

It does not pretend to be more than a concise 
summary of the main principles of the Common 
Law Lien, and though reference is made to most of 
the more important recent cases, I do not claim 
that the subject is dealt with from any new 


I hope that the gathering into one small volume 
of cases and principles culled from numerous books 
of reference and reports may be of sufficient value 
to justify this publication. 

L. E. H. 

61 West Smithfibld, London, E.C. : 
Nov. 12, 1916. 




















Angus v. McLachlan, 63, 82. 
Aspinall v. Pickford, 32. 


Baring and Another v. Day, 60. 
Bentinck v. London Joint Stock 

Bank, 41. 
Bevan v. Waters, 56. 
Binstead v. Buck, 57, 60. 
Blake v. Nicholson, 56, 79. 
Bleadon v. Hancock, 34. 
Bligh v. Davies, 78. 
Boardman v. Still, 81. 
Boch v. Gorrissen, 36. 
Bowes, In re, 39. 
Bradford Banking Co. v. Briggs, 

Brandao v. Barnett, 29, 39, 40, 

41, 76. 
Brennan v. Currint, 81. 
Bristol (Earl) v. Wilsmore, 86. 
Bunney v. Poyntz, 82, 85. 
Buxton v. Baughan, 26. 

Cole v. North- Western Bank, 26. 

Cooke v. Haddon, 65. 

Copland v. Stein, 87. 

Cowell v. Simpson, 37. 

Crawshay v. Homfray, 81. 

Crouch v. Great Western Rail- 
way, 64. 

Cumpston v. Haigh, 33, 37. 

Cuthbert v. Robarts, Lubbock & 
Co., 40. 


Deeze, Ex parte, 46, 55. 
Demainbray v. Metcalf, 32, 51. 
Deverges v. Sandeman, 41, 68, 

69, 76. 
Dicas v. Stockley, 78. 
Dooley v. Reade, 42. 
Douglas, Norman & Co., In re, 



Electric Supply Stores v. Gay- 
wood, 53. 
Exeter Carriers' Case, 53. 

Champernown v. Scott, 43. 

Chapman •». Allen, 49, 56. 

Chase v. Westmore, 81. 

Chick v. Nicholls, 42. 

Clark v. Gilbert, 67, 84. 

Close & Riddel v. Waterhouse, 47. 

Coggs v. Bernard, 65. 


Fairfield Co. v. Gardner, 45. 
Faithfull, In re ; L. B. & S. C. 

Railway, ex parte, 44. 
Farley v. Turner, 39. 
Fawcus, In re ; Buck, ex parte, 37. 



Forth v. Simpson, 24, 56. 
Foxcroffc v. Wood, 38. 


Godin v. London Assurance Co., 

Gough, In re ; Lloyd v. Gough, 44. 
Great Northern Railway v. 

Swaffield, 64. 
Great Western Railway v. 

Crouch, 63. 
Green v. Farmer, 46, 47. 
Gurr v. Cuthbert, 84. 

Hammonds v. Barclay, 16, 22. 
Hardwick, In re; Hubbard, ex 

parte, 68. 
Harrison v. Meyer, 79. 
Hartford v. Jones, 60. 
Hartley v. Hitchcock, 78. 
Hartop v. Hoare, 27. 
Hatton v. Car Maintenance Co., 

Hawse v. Crowe, 86. 
Henley v' Welch, 61. 
Hewison v. Guthrie, 82. 
Heywood, Ex parte, 51. 
Heywood v. Waring, 24. 
Higgins v. Scot, 20. 
Hill v. L.C. Markets Co., 46. 
Hirst v. Page & po., 53. 
Hiscox v. Greenwood, 28, 57. 
Holderness v. Collinson, 38. 
Hope & Co. v. Glendinning, 41. 
Hornby, Ex parte, 83. 
Hostler's Case, 67. 
Houghton v. Matthews, 38. 
Humphreys v. Partridge, 47. 
Humphries v. Wilson, 26. 
Hunter v. Berkeley, 57. 
Hussey v. Christie, 28, 29, 58. 

Jackson v. Cummins, 24, 56. 
Jacobs v. Latour, 49, 56. 
Johnson v. Hill, 29, 53. 
Jones v. Pearle, 78, 87. 
Jones v. Peppercorne, 29, 42. 
Jones v. Starkey, 50. 
Jones v. Thurlow, 84, 87. 
Judson v. Etheridge, 25, 54, 56. 

Eeene v. Thomas, 58. 

Kellett v. Kelly, 44. 

Kingston, Ex parte ; Gross, in re, 

Kinloch v. Craig, 26. 
Kinnear v. Midland Railway, 36. 
Kirchner v. Venus, 49. 
Kirkman v. Shawcross, 33, 48. 
Kruger v. Wilcox, 24, 37, 77. 

Lambert v. Robinson, 53. 

Lawrence, In re ; Bowker v. 
Austin, 57. 

Leese v. Martin, 40. 

Leith, In re ; Chambers v. 
Davidson, 33. 

Legg v. Evans, 22. 

Lempriere v. Pasley, 25. 

Lenton v. Cook, 61. 

Leuckhart v. Cooper, 34, 36, 46. 

Levy v. Barnard, 80. 

Lilley v. Barnsley, 47. 

Llewellyn, In re, 27. 

Lock v. Prescott, 29. 

London & County Bank v. Rat- 
cliff, 41. 

London & Globe Finance Cor- 
poration, In re, 39, 41. 

London Joint Stock Bank v. 
Simmonds, 41. 

Lumley, In re, 45. 




Maans v. Henderson, 31, 45, 51. 
Madden v. Kempster, 25. 
Mann v. Shifiner, 45, 46. 
Matsuda v. Waldorf Hotel, 55. 
Mills v. Gorton, 59. 
Moet v. Pickering, 38. 
Morris, In re, 82. 
Moss v. Townsend, 71. 
Mulliner v. Florence, 53, 67, 84. 

Reeves v. Capper, 80. 
Richardson v. Gross, 29, 35. 
Ripon City, 20. 
Robins & Co. v. Gray, 29, 53. 
Robinson v. Walter, 71. 
Robson v. Kemp, 38. 
Rose v. Hart, 47. 
Ross v. Branstead, 86. 
Rushforth v. Hadfield, 35, 36, 56. 

Naylor v. Mangles, 35, 38, 52. 
Nesbitt, Ex parte, 27, 44. 
Nicholas v. Clent, 26. 
Nicholson v. Chapman, 60. 
Nicholson, In re ; Quinn, ex 

parte, 44. 
Noble, In re ; Douglas, ex parte, 

Norway, The, 84. 

Ockenden, Ex parte, 55. 
Oppenheim v. Russell, 33, 35, 53, 

54, 84. 
Orchard v. Rackstraw, 25. 


Packer v. Gillies, 51. 
Parker v. Carter, 45. 
Parkhurst v. Foster, 54. 
Pelley v. Watlen, 43, 44. 
Pigot v. Cubley, 68. 
Plaice v. Allcock, 48. 


R. v. Humphrey, 34. 
R. v. Sankey, 43. 

. S. 

Savill v. Barchard, 47. 

Scarfe v. Morgan, 56, 62. 

Shank, Eas parte, 77. 

Shaw v. Neale, 24, 42. 

Simond v. Hibbert, 51. 

Singer Mfg. Co. v. L. & S.W. 
Railway, 54. 

Skinner v. Upshaw & Son, 53. 

Snook v. Davidson, 31. 

Sodergreen v. Flight, 79. 

Solomon, Ex parte, 83. 

Somes v. British Empire Ship- 
ping Co., 67. 

Spears v. Hartley, 20, 35, 38. 

Spotten, In re ; Provincial Bank, 
ex parte, 34. 

Stevens v. Biller, 37. 

Stevenson v. Blakelock, 82, 85. 

Stone v. Lingwood, 57. 

Sweet v. Pym, 47, 78. 

Syeds v. Hay, 39. 

Tate, In re, 76. 

Taylor v. Jones, 61. 

Taylor, In re ; Stileman v. 

Underwood, 43, 83. 
Thames Iron Works v. Patent 

Derrick Co., 67, 71. 
Townsend v. Reade, 42. 



Union Cement Co., In re ; Pul- 
brook, ex parte, 57. 

United Service Co., In re ; John- 
son's Claim, 39. 


Walker v. Birch, 26. 

Walker, In re; Meredith v. 

Walker, 43. 
Wallace v. Woodgate, 86. 
Ward v. Felton, 79. 
Weeks v. Goode, 81. 

Weldon v. Gould, 30, 46, 47. 
Westlake, In re ; Willoughby, ex 

parte, 82. 
Whitehead v. Vaughan, 45, 78, 

Wilkins v. Carmichael, 22. 
Witt, In re ; Shubrook, ex parte, 

Wright v. Snell, 84. 

Torke v. Grenaugh, 29, 52, 53, 54, 
57, 58. 



Before considering the nature and peculiarities of 
possessory liens, as dealt with in the law of England, 
^ it is necessary to pay some attention to a considera- 
tion of the nature of possession itself. It is not 
intended in this thesis to deal with the subject 
exhaustively, for this would necessitate the devotion 
of far more space than could be afforded here, but 
a reasonably exact conception of the meaning and 
nature of possession is essential for a proper appre- 
ciation of the subject-matter of this article. 

At first sight the subject would not appear to 
create much difficulty, but consideration will disclose 
that few theoretical conceptions are less easy of exact 

Possession is so nearly akin to ownership and is 
the fount of so many important results, that it is 
strange that it has been dealt with so inadequately 
by jurists. Possession is evidence of ownership, and 
in course of time may actually develop by prescrip- 
tion into ownership itself, and even when wrongful 
is a good title against all except the true owner. 

Possession in Law, and Possession in Fact. — 
The first difficulty with which the student will be 
assailed is the distinction between possession in law 



and possession in fact. Possession, in the popular 
sense, denotes a state of fact of exclusive physical 
control, which state of fact is not always ascertain- 
able with "any degree of certainty, and does not 
always produce the normal legal effect. The law 
may credit the advantages of possession to some 
person other than the apparent possessor, or to a 
particular person, although the possession is disputed 
or vacant. Hence arises the distinction between 
actual and legal possession. Actual possession 
denotes the state of fact, whilst the person to whom 
are credited the advantages of possession, has the 
legal possession, whether he has the actual possession 
in point of fact or not. Possession in law may, and 
usually does, co-exist with possession in fact, the law 
crediting possession with all its advantages to the 
person who in fact has the possession. Possession 
may, however, exist in fact, but the person in such 
possession may not be regarded as the legal possessor, 
and in this case no advantages accrue legally from 
this state of fact. A servant, for example, having 
the custody of his master's property, is not, for many 
purposes, regarded as having the legal possession, 
which is in the master, the physical custody which 
the servant in fact has, being legally detention and 
not possession. Further, possession may exist in 
law though the legal possessor has not in fact the 
custody or detention. An example- of this may be 
given in the case of a purse which has been lost by 
the owner in a public place, but which has not been 


acquired by any other person. In this case actually 
no one can be said to be the possessor in fact, yet • 
legally the possession is still in the owner and will 
remain there until someone has acquired the article, 
when the latter will, with the possession in faet, also 
acquire the legal possession. 

To properly understand the nature of legal pos- 
session, it is necessary first to analyse the conception 
of possession in fact, and then to consider the manner 
in which it is recognised and applied legally. We 
shall therefore deal first with possession in fact, and 
then consider the rules under which the legal posses- 
sion co-exists with it, or is considered by English law 
to be vested elsewhere than in the person having the 
actual custody. The word " possession " as used 
henceforth will, unless otherwise stated, signify pos- 
session in fact. 

Corporeal and Incorporeal Possession. — In 
the short analysis contained in Salmond's "Juris- 
prudence," possession is divided into two kinds, 
corporeal and incorporeal. The former is the pos- 
session of a material object, such as an estate, a 
house, or a purse; whilst the latter is the possession 
of anything other than a material object, such as an 
easement (e.g. a right of light or air, or right of way 
over another man's land), or a title of rank. Such 
possession is constituted by exercise of the right. 
For the purpose of this thesis we are not concerned 
with incorporeal possession, for liens can only exist 
in respect of a material object. Possession for our 


purpose is therefore corporeal possession, which is 
a continuing relation between a person and some 
material object. 

It is a relation of fact and not of right, for it must 
be remembered that even legal possession is not 
necessarily lawful possession, which is the possession 
of a person who has good title to possess. A thief 
who steals a watch and actually carries it off has 
possession in fact and also possession in law, though 
a wrongful possession. 

Elements op Possession. — Much speculation 
exists in the writing of such jurists as have dealt with 
the subject as to the exact nature of this relation of 
fact, but the most satisfactory answer appears to be 
that the possession of a material object is the con- 
tinuing exercise of a claim to the exclusive use of it. 
This involves two elements, a mental one of intention 
of the possessor towards the thing possessed, usually 
called the " animus possidendi," and a physical one 
of the external facts, by which the intention of occu- 
pation or control has been rendered effective. This 
latter element is usually designated the " corpus " 
or " corpus possessionis," a convenient description 
borrowed from the language of the Roman lawyers. 

Both elements must co-exist in every case of true 
possession; the possessor must intend to appropriate 
to himself the exclusive use of the thing possessed, 
and this claim and intention must be actually and 
continuously exercised. Possession only commences 
and exists whilst these two elements are present, and 


will cease when either disappears. Mere intention 
to occupy or possess an object is insufficient to pro- 
duce possession without some power to use the thing 
and to exclude others, though the latter power may 
be very smah> " Similarly, any physical relation to 
an object, not coupled with any animus or intention, 
is insufficient, and will not produce the relationship 
of possession. I may go into a friend's room when 
he is out, and, being alone in the room, have physical 
power over the articles, such as ornaments, in the 
room. I could carry them away with me, but as I 
have no animus or intention of acting as owner, they 
are not in my possession. I may take them up to 
look at, but still have no possession if I do not mean 
to possess them. In the same way a man, alone in 
another man's field, is not in possession of it unless 
he intends to exclude everyone else. 

These essential elements will be considered 

I. " Animus Possidendi." — The animus possi- 
dendi is the intent to appropriate the exclusive use 
of the thing possessed, that is to say, whilst intending 
to use it personally, to exclude all other persons 
whatsoever. It is not necessary that the possessor 
should have a rightful claim, or even think he 
has a rightful claim, for, though he knows his 
possession is wrongful, if he intends to act as 
though he had a right, the animus is sufficient. The 
intention need not necessarily be on one's own 
behalf; the animus of a servant, or lessee, or trustee, 


claiming an exclusive use on behalf of his master, 
landlord, or cestui que trust, gives him possession in 
fact, though probably not in all cases possession 
in law, nor need the animus possidendi be a claim to 
use the thing possessed as owner. Any degree of 
intended use, if, for the time being, exclusive, is 
sufficient to constitute possession. Thus, a borrower 
can possess, for he intends to exclude all persons but 
the lender, and even the lender until expiration of 
the term of the loan. The animus possidendi need 
not be specific; it may be a general intent with 
reference to a class of things, and this is sufficient. 
I possess all the articles in my house, even though I 
may have forgotten the very existence of many of 
them. I possess the increase of my flocks, even 
though such increase is unknown to me ; I possess the 
contents of a letter I receive, even though I have not 
opened the envelope. 

There must be at least a general animus, however, 
and consequently if I buy a cabinet, and, in a secret 
drawer unknown to me there is a packet of money, 
I do not possess this money until I find it. 

II. " Corpus. Possessions. " — Mere intention, 
as before stated, without the corpus — i.e. effectual 
realisation, by power to use and exclude others — is 
insufficient. The degree of power need not be great; 
indeed, it appears from " Terry on Principles of 
Anglo-American Law," that " any power to use and 
exclude others, however small, will suffice, if accom- 
panied by the animus possidendi, provided that no 


one else has the animus possidendi and an equal or 
greater power." 

The claim involved in the animus must be actually 
and continuously exercised. As Salmond says : " it 
must amount to the actual exclusion of all alien inter- 
ference with the thing possessed, together with a 
reasonably sufficient security for the exclusive use of 
it in future." Since the corpus involves power to 
exclude others and power to use, it involves a 
relationship of the possessor to other persons and a 
relationship to the thing possessed. 

(a) Relation of Possessor to other Persons. — 
Although the power to exclude others may be very 
small, yet still sufficient, there must be such facts as 
to create a reasonable expectation that the possessor 
will not be interfered with in the use of it. Pollock 
and Wright, in the work " Possession in the Common 
Law," state that reality of de facto dominion is 
measured in inverse ratio to the chances of effective 
realisation. There must be a measure of security 
for the possession which would normally and reason- 
ably satisfy a possessor. If the possessor is satisfied 
that his claim of possession will be respected whilst 
the thing possessed remains where it is, this relation 
to other persons is sufficient. 

This measure of security may be derived from 
many sources, and will differ according to the charac- 
teristics of the thing possessed. I may leave a chair 
at the door of my cottage, trusting to the natural 
respect for rightful claims for protection against it 


being carried away, and this security would be suffi- 
cient, but if I left a roll of banknotes on the chair, 
this would obviously not suffice. 

The greatest form of security is the physical 
power of the possessor, as when a purse of money 
is locked in a burglar-proof safe. The personal 
presence of the possessor will also suffice, even 
though the possessor is weak, as, for example, in 
the case of a child with money in its hand. Its 
strength will not be sufficient to maintain possession 
as against a burly ruffian, but there is no doubt that 
whilst the money is in the child's hand, the latter is 
in possession. 

Again, if I hide an article which I possess, I 
obtain a reasonable security for its enjoyment. Pro- 
tection may also be afforded by the possession of 
another article with which the thing is connected, or 
to which it is accessory. Thus, possession of a house 
tends to confer possession of the chattels inside it, 
and possession of a box tends to confer possession of 
the contents, though this depends on the facts of 
each particular case. If my neighbour's sheep have 
strayed on my land, since there is no animus there 
is no possession, nor is there possession of a jewel 
lost by another in my garden which I cannot find, 
for there is no corpus, still less is there possession 
in respect of unknown buried treasure in my field, 
for here there is neither corpus nor animus. This 
necessary security may be afforded in many other 
ways, and the security may be obtained by general 


acquiescence by reason of such matters as custom, 
a manifestation of ownership and respect for rightful 

Such, generally, is the relationship between the 
possessor and other persons which affords security 
from alien interference. 

(6) Relationship of Possessor to Thing Possessed. 
— There must also be a relation of the possessor to 
the thing possessed, to afford security for the power 
to use, and this is such as to admit of his making 
such use of it as accords with the nature of the thing 
and of his claim to it. There must be no barrier 
between him and it, inconsistent with the nature of 
his claim to it. A fisherman is therefore not in pos- 
session of a fish until it is actually enclosed in his net, 
or securely caught on his hook. 

In the same way, possession once acquired is lost 
when this relation to the thing possessed ceases, as 
when I lose a shilling in the street or a caged bird 
escapes. The case of an article irrevocably lost 
should, however, be distinguished from a temporary 
loss of the thing in a place where it can more or less 
easily be found. The loss of a shilling in a public 
place, which also involves loss of possession, differs 
from the loss of a book temporarily mislaid in my 
own house. 

No voluntary absence will involve loss of this 
relation and consequent loss of possession, for 
physical presence or contact is not necessary. The 
voluntary absence can be put an end to by return. 


The necessary elements of possession are there- 
fore : 

1. Animus possidendi — i.e. the intent to appro- 
priate the exclusive use of the thing 

2. Corpus possessionis — i.e. the external facts 
carrying the intention into effect involving : 

(a) A relation by the possessor to other 
persons, as the custos involves a 
power to exclude alien interference, 

(b) a relation by the possessor to the 
thing possessed, as the custos in- 
volves a power to use oneself. 

Before considering the rules by which the legal 
possession is fixed, it is convenient to consider here 
the subject of derivative de facto possession and the 
acquisition of de facto possession. 

Derivative Possession. — When a person 
acquires or retains, directly and personally, the pos- 
session of a thing, for, and on account of, someone 
else, he is said to have immediate possession, whilst 
the person on whose behalf he holds the custody is 
said to have mediate possession, and the latter is in 
possession by the agency of the immediate possessor. 

Mediate possession is divided into three kinds 
according to the amount of interest in the article 
possessed claimed by the immediate possessor. In 
the first kind the immediate possessor claims no right 
or title for himself, and claims purely on account of 


the mediate possessor. A servant going to borrow 
an article for my use or. to buy something for me, 
a carrier's servant driving his master's waggon, a 
tailor repairing my coat, may be cited as examples. 
Where the immediate possessor claims both on his 
own account and on account of the mediate pos- 
sessor, recognising, however, the superior claim of 
the mediate possessor and his right to the immediate 
possession whenever he shall require it, the case falls 
into the second kind. A loan of an article to be 
returned on demand is in this category. In the last 
kind the immediate possessor claims solely on his 
own behalf until the expiration of some fixed or 
determinable time, or the fulfilment of some con- 
dition, but recognises the superior right of the person 
for whom he holds, and is willing to deliver the thing 
to him on the determination of his temporary claim. 
A loan for a fixed time, and an ordinary pledge, in 
which the thing pledged is returned on the payment 
of a debt, are examples of this. 

Salmond states that in all cases of mediate posses- 
sion, two persons are in possession at the same time, 
and that until the temporary claim of the immediate 
possessor has been put an end to by demand, or the 
determination of the claim, immediate possession 
exists as against everyone, whilst mediate possession, 
whilst valid as against third parties, does not exist as 
against the immediate possessor. With this state- 
ment I cannot, however, agree. Possession is 
exclusive in its nature, and in these cases English law 


only deems the immediate possessor to be in posses- 
sion (except when the immediate possessor claims 
solely for the mediate possessor without claim of 
interest for himself), and only accords to him 
possessory remedies. Where the immediate posses- 
sor has both the animus and corpus of possession, be 
has both the actual and legal possession, and he alone 
has such possession. 

Concurrent Possession. — As before stated, 
possession is exclusive in its nature, and two claims 
of exclusive use adverse to one another cannot be 
effectually realised in fact, and therefore, there being 
no corpus, cannot exist together at the same time. 
Two or more persons can possess in common, but in 
this case the possession is still single and exclusive, 
though jointly exercised. 

Modes of Acquisition op Possession. — Posses- 
sion comes into being as soon as the necessary 
elements of animus and corpus co-exist, and it exists 
so long, and only so long, as they remain in being. 
As soon as either of these elements disappears, pos- 
session ceases. Possession is acquired in two ways, 
either, first, without the consent of a previous 
possessor, by taking, or, secondly, by delivery from 
the previous possessor with his consent, which 
delivery may be actual or constructive. If a person 
takes and carries away a thing belonging to another, 
with the intention of acting as owner, and in fact has 
the exclusive use himself, he becomes the possessor, 
even though a wrongful one. Delivery, when actual, 


consists of a transfer of the immediate possession by 
a manual dealing, a handing from one possessor to 
another, the mediate possession either remaining 
with the transferor, as in the case of a loan, or not, 
as in the case of a sale. Any delivery not by 
handing from one possessor to another is construc- 
tive, and constructive delivery consists in a dealing 
with the mediate possession. In these cases there is 
no physical dealing, and the change in possession is 
effected merely by a change in the animus. The 
mediate possessor may surrender his interest to the 
immediate possessor, as when a borrower purchases 
the article loaned from the lender. The owner's 
animus in this case is destroyed, and the possession 
passes without any manual dealing. Again, an 
immediate possessor may agree to hold a thing hence- 
forth on behalf of another person, thus transferring 
the mediate possession to him, as in the case of 
purchase of goods without immediate delivery. The 
last case is that in which the mediate possession is 
changed without any transfer of the immediate pos- 
session which remains outstanding in a third party. 
Thus, if I have goods stored in a warehouse and sell 
them to a purchaser, the delivery is complete as soon 
as the warehouseman agrees to hold the goods on the 
purchaser's behalf. 

Eulbs for Legal Possession. — It now remains 
to consider the rules which are taken into considera- 
tion by the law in crediting the advantages of 
possession. These are four in number : 


(1) Possession in fact is prima facie evidence of 
possession in law. That is to say, so far and 
so long as nothing appears to the contrary, 
the law will ascribe legal possession to the 
person who has de facto possession. The 
common law is averse to separating the legal 
and de facto possession, and only does so in 
special cases. The possession of a servant 
holding on behalf of his master is an example 
of this exception, and in this case the custody 
is so manifestly without appearance of 
ownership, that in most cases the servant is 
apparently merely the master's instrument, 
exercising the master's power and not his 

(2) Possession in fact, with the manifest intention 
of sole and exclusive dominion, always im- 
ports possession in law. 

(3) Where a man has possession in law and in 
fact, and loses the physical control without 
the intention of parting with possession, he 
will retain the possession in law until some- 
one else acquires the physical possession, and 
with it the possession in law. 

(4) When a thing is an object of dispute, and is 
so evenly disputed that no claimant can be 
said to have possession in fact rather than the 
other, the law makes the legal possession 
follow the better right. If the owner and 
another person having no interest or title 


seize an article at the same time, the owner 
will have possession in law rather than the 
Such, then, is possession, and such, possession in 



Word " Lien." — Before endeavouring to define 
"lien," it is interesting to consider the derivation 
of the word itself. It is of comparatively recent 
origin. The right of lien existed in very early times, 
certainly as early as the reign of Edward IV., under 
the name of a right of retainer, but the right was not 
called that of " lien " until about the early part of 
the eighteenth century. The word is derived directly 
from the French lien, and further back from the 
Latin ligamen, which signifies " a tie " or " some- 
thing binding." As will be seen, the right in its 
fullest and widest application means a charge upon 
property — that is to say, something which is binding 
upon it. 

Definition. — Many attempts have been made to 
define satisfactorily the word " lien." One of the 
earliest definitions is that laid down by Grose, J., in 
Hammonds v. Barclay 1 in 1801 — namely, "A 
right in one man to retain that which is in his posses- 
sion belonging to another, till certain demands of 

1 2 East, p. 227. 


him, the person in possession, are satisfied"; and 
this definition has been adopted by Mr. Joshua 
Williams, Q.C., in his " Law of Personal Property." 
But, as will be seen later ' when the nature of Equit- 
able Liens is shortly considered, possession is not in 
all cases an essential element in the creation of a lien, 
in the widest application of the term, and the defini- 
tion is not wide enough, though satisfactory, as the 
definition of a possessory or common law lien, for 
the term " lien " is also used to denote rights given 
by Equity and Maritime Law to creditors to have 
certain specific property primarily applied to the 
satisfaction of their demands, irrespective of 

The definition of Whiteley Stokes, in "Lien of 
Attorneys and Solicitors" — namely, "A right to 
charge property in another's possession with payment 
of a debt or the performance of a duty," is also 
unsatisfactory, as it excludes the most important 
section of Possessory Liens, in. respect of which the 
right and the possession are vested in the same 

Perhaps the widest and most satisfactory defini- 
tion is that adopted by Whitaker in his ' ' Treatise of 
the Law of Lien," published in 1812 — namely, 
" Any charge of a payment of debt or duty upon 
either real or personal property." This is lien in its 
most extensive sense. 

1 See Chap. I. p. 18. 


This treatise is intended to deal only with the law 
relating to Possessory Liens, except in so far as a 
study of liens other than possessory is necessary 
to the proper conception of the nature of posses- 
sory lien, and Grose's definition above is fairly 

A lien, therefore, is " any charge of a payment 
of debt or duty upon either real or personal pro- 
perty," whilst a possessory lien is " a right in one 
man to retain that which is in his possession 
belonging to another, till certain demands of him, 
the person in possession, are Satisfied. " 

Common Law Lien. — Liens, in English law, are 
of three kinds, the first being the Common Law, or 
Possessory Lien, with which we are mainly concerned 
in this article, and which will be dealt with in the 
remaining chapters. From the definition it will be 
seen that it applies when a person is in possession of 
the property of another, and is allowed to retain the 
possession until some claim has been satisfied. 

Equitable Lien. — The second kind is the equit- 
able lien, which is an equitable right, conferred by 
law upon one man, to a charge upon the real or 
personal property of another, until certain specific 
claims have been satisfied. It is founded on a 
principle of equity, that he who has obtained posses- 
sion of property under a contract for payment of its 
value will not be allowed to keep it without payment. 
In the case of the equitable lien, the claimant has a 
charge on the property of another, but not in his 


possession. This charge attaches to the property 
and gives rise to equitable remedies. 

An unpaid vendor, who has parted with the pos- 
session, is entitled to such a claim, in respect of the 
unpaid purchase money, and so is a purchaser who 
has paid part of the purchase money before transfer 
of the property. 

In each case, unless equity stepped in to give the 
creditor an equitable lien, he would be left to his 
remedies at law by action to recover his purchase 
money without any hold on the property itself. 

A similar remedy is given to a partner in respect 
of the partnership assets on dissolution ; to an incum- 
brancer who has paid an amount for redemption 
prior to retransfer of possession of the property 
mortgaged; to a trustee in respect of the costs, 
charges, and expenses of the trust; and to a solicitor 
upon the fruits of judgments obtained by him on 
behalf of his client. 

Comparison op Possessory and Equitable 
Liens. — As already mentioned, the principal differ- 
ence between possessory and equitable liens lies in 
the fact that, to enable anyone to claim the former, 
he must be in actual possession of the thing in 
respect of which the claim arises, whilst the latter 
arises quite independently of possession. There are, 
however, other differences of some importance. The 
common law lien is a merely passive one, and gives 
the person entitled no other remedy but mere deten- 
tion until payment, and, in the ordinary way, no 


right of sale accrues even by leave of the Court. In 
respect of an equitable lien, however, the only 
remedy is a right to enforce it by a judicial sale; 
also, since a possessory lien is, in its nature, a right 
of defence only, and not a right of action, there is 
nothing to prevent its being claimed in respect of a 
statute barred debt,' but no assistance can be given 
for the enforcement of an equitable lien when the 
remedy has been barred by lapse of time under the 
Statutes of Limitation. 

Maritime Lien. — The remaining species of lien 
is the Maritime Lien, which is a claim or privilege 
upon a maritime res, that is to say, a ship, freight, 
or cargo, and it arises either ex contractu, for ser- 
vices rendered to the res, such, for example, as 
salvage; or ex delictu, as for compensation for 
damage by collision. This claim is enforced by an 
Admiralty action in rem (i.e. against the res) by 

The basis of a maritime lien is the liability of the 
owner of the res, when the lien attaches, to persons 
who have rendered services to it or received injury 
by it. It is a right acquired over a thing belonging 
to another, a jus in re aliena, and is a subtraction 
from the absolute property of the owner of the thing. 1 

5 Higgins v. Scot, 2 B. & Ad. 413, 414; 9 L. J. KB. 262; 
36 R. a. 607 ; Spears v. Eartley [1800] 3 Bep. 81. 

4 The Bipon City [1897] P. 226 ; 66 L. J. P. 110, per 
Barnes, J. 


This lien arises in cases of damage by collision, 
in respect of the ship causing the damage; for sal- 
vage, in respect of the vessel saved by means of the 
assistance rendered, and also for the wages and 
victualling allowance of seamen and the wages and 
disbursements of the master. 

Comparison of Possessory and Maritime 
Liens. — The maritime lien is of a more restricted 
application than either the common law or the equit- 
able lien, as it can only exist in connection with the 
demands arising in respect of a ship as before 
specified. Like the equitable lien, but unlike the 
possessory, it is more than a merely passive right of 
detention, and it may be enforced by a judicial sale, 
and, since it is in the nature of a right of action, it 
may be defeated by lapse of time under the Statutes 
of Limitation. 

Difference between Maritime and Equitable 
Liens. — The maritime lien is a subtraction from the 
absolute property of the owner of the res, and, as such, 
it avails against a legal purchaser, even without notice, 
but equitable liens will not avail against a purchaser 
for value without notice. This distinction constitutes 
a very important difference between these two kinds. 

Such are the various kinds of lien and the various 
distinctions between them. With the equitable and 
the maritime we are not concerned, and we will now 
consider the nature and peculiarities of the common 
law or possessory. 



The most satisfactory definition of the term 
possessory lien appears, as we have before stated, to 
be that laid down by Grose, J., in Hammonds v. 
Barclay l — namely, " A right in one man to retain 
that which is in his possession belonging to another 
till certain demands of him, the person in possession, 
are satisfied." 

This is a purely personal right which exists during 
the continuance of the possession, and, accordingly, 
it cannot be taken in execution ' nor can it be 

General and Particular Liens. — A possessory 
lien may be either of two kinds — namely, a general 
lien or a particular (or specific) lien, differentiated by 
the extent of the demands in respect of which the 
lien arises. 

Where an individual is permitted to retain the 
goods of another, which are in his possession, until 

1 [1801] 2 East, p. 227. 

* Legg v. Evans [1840] 6 M. & W. 36 ; 9 L. J. Ex. 102 ; 
55 E. R. 490. 

" Wilkins v. CaTtnichael, Doug. 97. 


all claims against the owner of the chattels in respect 
of a general balance of account are satisfied, whether 
such claims arise in respect of the particular goods 
detained or not, the person in possession is said to 
have a general lien. 4 A particular lien, on the con- 
trary, is a right to retain specific property as security 
for demands which have arisen in respect of such 
property only, such as the demand for the unpaid 
price of work done, or materials furnished in repair- 
ing or constructing a specific chattel. For example, 
a solicitor is entitled to retain the papers of a client 
as security for all costs due to him from the client, 
whether they become due in respect of the matters 
to which the papers relate or not, and his lien is a 
general one. The unpaid vendor of goods, on the 
other hand, has a right under the Sale of Goods Act, 
1893, to detain the goods sold until the purchase 
price is paid, and he has only a particular lien and 
could not retain the goods in respect of the unpaid 
purchase price of other goods sold at another time. 

The essentials for a valid possessory lien, whether 
of a general or particular nature, are : 

(1) Actual possession of the goods in respect of 
which the lien is claimed. 

(2) Lawful possession. 

(3) That the goods must be the goods of the 

(1) Actual Possession. — Possession of the goods 
is essential for a common law lien, and if possession 

* See 2 Selwyn, Law of Nisi Prim [1812]. 


is lost (except as hereafter mentioned) the right of 
detention is lost also. The property must be in the 
actual possession of the party claiming the lien.* , 

The possession must be actual, and, for example, 
a mere equitable right to possession is insufficient to 
give rise to the right.' Thus, if a consignment of 
cargo is made to " A," with a direction to pay " B " 
a sum out of the proceeds, no lien will thereby be 
created in favour of " B." 

Not only must it be actual, but also of a con- 
tinuous and uninterrupted nature, and accordingly a 
trainer, for example, will not acquire a lien for his 
charges in respect of a horse, which the owner 
removes from time to time from the former's cus- 
tody, to run in races.' In general, a bailee can have 
no lien where, by the essence of the contract, he has 
no right to the uninterrupted possession of the 

In Hatton v. Car Maintenance Co., Lim. 
(110 L. T. E. 765), it was held that a party who 
takes care of a car and agrees to maintain and keep 
it in order has no lien for repairs. The main reason 
for this is that in repairing the car he does not 

5 Shaw v. Neale, 6 H.L. Cas. 581; 27 L. J. Ch. 444; 
108 R. R. # 205. 

* Eeywood v. Waring, 4 Camp. 291. 

7 See Kruger v. Wilcox [1753] Amb. 252, and Forth v. 
Simpson, 13 Q.B. 680 ; 18 L. J. Q.B. 263 ; 78 R. R. 496. 

* Jackson v. Cummins, 5 M. & W. 342 ; 8 L. J. Ex. 265; 
52 R. R. 737. 


improve it,' but, quite apart from this, he would have 
no lien if the owner was entitled to take the car out 
whenever he pleased, for the possession would not 
be of a continuous nature; query, indeed, whether 
there is possession at all in such a case. 10 A livery- 
stable keeper who merely feeds an animal has, for 
much the same reason, no lien, for he has not posses- 
sion, but a mere custody. It should be noted that 
whilst the possession must be actual it need not be 
direct, and the possession of an agent, servant, or 
warehouse keeper of the creditor, acting under his 
authority, is sufficient. 

(2) Lawful Possession. — Even actual possession 
is insufficient unless it was lawfully acquired in due 
course of business. Mere possession of a debtor's 
goods will not alone give the creditor a right of lien 
over them. 

A lien cannot be acquired by a wrongful act, and 
possession obtained by misrepresentation, fraud, or 
violence will never give rise to the right, even though 
every other essential is present and the lien would 
have arisen but for such violence or other wrongful 
act." In Lempriere v. Pasley " a lien was claimed 
for certain freight duty paid in respect of goods, pos- 
session of which had been wrongfully obtained, but it 

' See infra, p. 55. 

10 See Judson v. Etheridge [1833] 1 Cr. & M. 743 ; Orchard v. 
Backstraw [1850] 9 C. B. p. 98 ; 19 L. J. C.P. 303 ; 82 R. R. 509. 
" Madden v. Kempster [1807] 1 Camp. 12. 
" [1788] 2 Term Eep. 485. 


was held that the wrongful acquisition of possession 
was fatal to any such claim. Also, in Nicholas v. 
Clent," an agent who obtained, goods from a ware- 
house in which they were deposited in the name of 
his principal, and without authority, after bank- 
ruptcy of the principal, was held to have no lien 
as against the trustee for any claim against the 

Except where statute law has expressly provided 
to the contrary, which is only in cases of negotiable 
instruments, or dealing by a factor, it is quite 
, immaterial whether the wrongful act is that of the 
person claiming the lien or of a third party, for a 
person in possession of goods cannot give a better 
title by sale or pledge than he has himself." 

Further than this, possession obtained for some 
particular purpose only will not give rise to a general 
lien." In Kinloch v. Craig " a factor received goods 
for the purpose of sale and under an agreement to 
apply the proceeds in an agreed manner. As pos- 
session was acquired for this particular purpose only, 
it was held there was no lien. Also, in Humphries 
v. Wilson," a bill for 100L was given to a creditor 
for 471. to be discounted, the creditor being promised 

15 3 Price, 547. 

" Buxton v. Baughan [1834] 6 C. & P. 674 ; 40 R. R. 842 ; 
Cole v. North Western Bk. [1875] L. R. 10 C.P. 354, 362; 
44 L. J. C.P. 233. 

" See Walker v. Birch [1795] 6 Term Rep. 258. 

" 3 Term Rep. 119 ; 1 R. R. 664. 

17 2 Stark. Rep. 566. 


payment out of the proceeds. Before the bill was 
discounted the creditor became bankrupt, and a 
claim of lien was negatived for this reason. 

The reason for these cases is that there was a 
failure of the special purposes for which the goods 
were deposited with the creditor, and the property in 
the goods reverted to the debtor, the possession of 
the creditor ceasing to be lawful. 

If goods are, however, left in the possession of a 
creditor for a considerable time after the failure of 
the particular purpose for which they were originally 
deposited, a deposit for general purposes will be 
presumed and a lien will attach. 

(3) The Goods must be the Goods of the Debtor. 
— In the general way a creditor cannot obtain a lien 
over goods of a third party, and no right will attach 
unless the goods actually belong to the debtor. Thus, 
it was held in Ex parte Nesbitt" that a valid lien 
cannot attach as against a remainderman for a debt 
due from the tenant for life, and in Hartop v. 
Hoare," where a person with whom jewels were 
lodged for safe custody in a sealed box, broke the 
seals and lodged the jewels as security with his 
bankers, it was held no lien was created. In the 
more recent case of In re Llewellyn 2 ° a mortgagee's 
solicitor, after payment off of the mortgage, prin- 
cipal, interest, and costs, unsuccessfully endeavoured 

" 2 Sch. & Lef. 279. 

" 3 Atkyns, 43. 

" [1891] 3 Ch. 145; 60 L. J. Ch. 732. 


to retain the mortgage deeds in respect of costs for 
work done, relating to the mortgaged property, 
during the continuance of the mortgage. 

It is no exception to the general rule that where 
a servant delivers cloth to a tailor to make his 
master's livery, the tailor will have a lien for the 
price," for the debtor is the master, and if the ser- 
vant has no authority to send the goods to be repaired 
no lien can arise. In Hiscox v. Greenwood " a 
servant, by negligence, broke his master's coach, and 
without the authority and knowledge of the master 
took it for repairs to a coachbuilder who had never 
before been employed by the master, and it was 
decided that the coachbuilder had no lien for his 
charges for such repairs. 

To the general rule there are exceptions which 
may be grouped under the following main headings : 

1. Where the person receiving the goods is by 
law compelled to receive them. 

Carriers are under a legal obligation to carry 
goods, and, in consequence, they acquire a lien over 
all goods delivered to them for carriage until the 
charge for carriage is paid, whether the goods are the 
property of the persons delivering them for carriage 
or not. Innkeepers who are under legal obligation 
to receive anyone who offers himself or herself as a 
guest, and to keep the goods of the guest safely, in 
the same way will acquire a lien over the goods of 

21 Per Ellenborough, C.J. in Hussey v. Christie, 9 East, 433. 
" 4 Esp. R. 174. 


the guest until the charges for food and lodging have 
been paid." 

To enable a lien to be claimed on goods not the 
property of the 'debtor they must, however, have 
been received in good faith, for a lien will not arise 
where the person receiving knew the person from 
whom he received was a wrongdoer." 

2. Where the debtor is invested by the owner 
with the right or authority of disposing of the pro- 
perty in that way. 

If a person delivers the goods of another, with 
the owner's authority, to a tradesman for the execu- 
tion of the purposes of his trade upon it, the 
tradesman shall have a lien upon it to the same extent 
as if the goods were actually the property of the 
person who delivered them to him." 

3. Where moneys or negotiable securities are 
deposited with a person who takes them in good faith. 

Under these circumstances the depositee will 
acquire the same right of lien as if the depositor were 
the true owner, but it is essential that, at the time of 
receipt, he should have no notice of any defect in the 
title of the person depositing the goods." 

" Yorke v. Grenaugh [1702] 2 Ld. Raym. 866 ; Bobins & Co. 
v. Gray [1895] 2 Q.B. 501— C.A. ; 65 L. J. Q.B. 44. 

" See Johnson v. Bill [1822] 3 Stark. 172 ; 23 R. R. 764. 

" See Eussey v. Christie, 9 East, 433; Bichardson v. Goss, 
3 Bos. & P. 119; 6 R. R. 727. 

" See Jones v. Feppercorne [1858] John. 430; 29 L. J. Ch. 
158 ; 123 R. R. 177 ; Brandao v. Barnett [1846] 12 CI. & F. 787 ; 
69 R. R. 204, and Locke v. Presoott [1863] 32 Beav. 261; 
138 R. R. 733. 


4. Under the Sale of Goods Act, 1893, s. 25. 

It is provided by this section that " Where a 
person having sold goods, the delivery or transfer by 
that person, or by a mercantile agent acting for him, 
of the goods or document of title under any sale, 
pledge or other disposition thereof, to any person 
receiving the same in good faith without notice of 
the previous sale, shall have the same effect as if the 
person making the delivery or transfer were expressly 
authorised by the owner of the goods to make the 
same," and a similar provision is also made as 
regards dealings by a purchaser who obtains posses- 
sion with the consent of the seller without payment. 

Liens arising under any such dispositions within 
the provisions of this section will be effectual although 
the goods are not the property of the debtor. 

5. Under the Factors Act, 1889. 

Dealings by a mercantile agent, in the ordinary 
course of business, in respect of goods of which he 
is in possession with consent of owner, are as valid 
as if expressly authorised by the owner of the goods, 
providing the person taking under the disposition acts 
in good faith. 

6. Where an agent with limited authority deposits 
goods with a tradesman for execution of purposes of 
his trade, the tradesman not knowing he is not the 
true owner. 

Thus, in Weldon v. Gould," it was decided by 
Lord Kenyon, C.J., that where goods were entrusted 
" 3 Esp. R. 268; 6 R. R. 832. 


by the owner to another person in order to have them 
printed, and that person delivered them to a calico 
printer as his own for that purpose, the calico printer 
might retain them against the owner for a general 
balance due from the person who delivered them, but 
knowledge that the goods do not belong to the 
depositor will prevent any general lien arising." 

" See Maans v. Henderson, 1 East, 335 ; and Snook v. David- 
son [1809] Camp. 218 ; 11 R. R. 696. 



1. Liens by Contract. — Unless established by 
express or necessarily implied contract, general liens 
can be established by custom only. 

Liens arising by contract are really agreements 
for pledges, and are governed strictly by the terms 
of the agreement giving rise to them. Such liens 
may arise between individuals by express agreement, 
or by implication from usage or the course of dealing 
between the parties. In the case of Aspinall v. 
Pickford, 1 a carrier who has not, in the ordinary way, 
a general lien, was held to have such a lien in the 
particular facts of that case from the course of deal- 
ing, and in Demainbray v. Metcalf ' a pawn of jewels 
for the same reason was held to create a lien, not only 
for the advance at the time of the pawn, but also for 
three subsequent loans. 

It is also usual for the articles of association of a 
limited company to give to the company a lien on 
shares in respect of unpaid calls. 

1 3 Bos. & P. 44m. 

' 2 Vera. 691, 698 (S.C.). 


Apart from these cases, moreover, it is possible 
for a creditor to reserve a general lien by notice. 
When bodies of traders give notice that they will only 
do work upon terms of having a general lien, persons 
dealing with them will be held to have contracted 
with reference to this notice. 3 Such notice will 
always be construed most unfavourably to the person 
claiming the lien.* Mere notice is, in the ordinary 
way, sufficient without actual proof of assent by the 
customer, but where the person claiming a lien is 
compelled to accept employment under legal liability, 
mere notice without assent will be insufficient to give 
rise to a general lien. s This is mainly applicable in 
the case of carriers and innkeepers. 

It should be noted that where a mercantile trans- 
action, which might involve a general lien by custom, 
is created by a written contract, and security is 
given for the result of the dealings in that relation, 
the express stipulations and agreements of the party 
for security excludes lien and limits rights of the 
parties by the extent of the express contract that they 
have made.' 

2. Custom. — Apart from such cases, a general 
lien by custom can only be established by strict proof 

' See Kirkman v. Shawcross [1794] 6 T. B. 14. 

* See Cumpston v. Haigh, 2 Bing. N.C. 449; 2 Scott, 684; 
5 L. J. C.P. 99. 

* Oppenheim v. Bussell [1802] 3 Bos. & P. 42 ; 6 B. B. 604. 

* In re Leith; Chambers v. Davidson [1866] L. B. 1 P.C. 
305; 36 L. J. P.C. 17. 



by ancient, numerous, and important instances. It 
must be shown as a matter of law ' : 

(1) That the usage for a general lien was certain. 

(2) That it was a reasonable usage not incon- 
sistent with the law. 

(3) That as a matter of evidence, the custom was 
so universally acquiesced in that everybody 
in the trade knew it, or that it could have 
been ascertained if he had taken pains to 

It will not be sufficient to give evidence of mem-- 
bers of the trade that it exists, or a few isolated 
cases of a general lien being claimed. The question 
whether a lien exists is one of fact." 

As regards reasonableness the decision in the case 
of Leuckhart v. Cooper ' may usefully be considered. 
In this case warehousemen wished to establish a 
general lien on all goods put by a merchant in his 
own name into the hands of a warehouseman, 
whether the goods were the property of the merchant 
or not. This was held to be unreasonable, and 
therefore could not be upheld. 

The general principle, as laid down in Rex v. 
Humphrey," is that the usage of trade constitutes a 
recognised principle of law, and the law adapts it 

7 See In re Spottem; ex parte Provincial Bank, 11 Ir. Rep. 
Eq. 412. 

' Bleaden v. Hancock [1829] 4 Car. & P. 152 ; 34 R. R. 775. 
• [1836] 3 Bing. N.C. 99; 6 L. J. C.P. 131 ; 43 R. R. 602. 
10 1 McCle. & Y. 191 ; 29 R. R. 783. 


upon this plain understanding. The usage is pre- 
sumed to have been founded on contracts repeated so 
frequently, and which are so notorious, that every- 
body must be considered as bound to take notice of 
it." When once established the right of lien becomes 
part of the common law, and is accepted by the 
Courts without further evidence." 

The Courts have always discouraged claims for 
general liens, and the very strictest proof has always 
been required. The reasons for this are given by 
Le Blanc, J., in Rushforth v. Hadfield," as "That 
general liens are a great inconvenience to the bulk 
of the generality of traders, because they give a 
particular advantage to certain individuals who claim 
to themselves a special privilege against the body of 
creditors at large, instead of coming in with them 
for an equal share of the insolvent estate." Lord 
Ellenborough, C.J., in the same case, stated that 
growing liens were an encroachment upon the com- 
mon law, and Rooke, J., in Richardson v. Cross," 
said, " I think the doctrine of general liens is not to 
be favoured, because all persons who claim under 
them must have been guilty of neglect in suffering 
goods upon which the law has given them a special 

11 Per Rooke, J., in Oppenheim v. Bussell, 3 Bos. & P. 50 ; 
6 R. R. 604. 

" See Naylor v. Mangles, 1 Esp. 109 ; 5 R. R. 722, and Spears 
v. Hartley, 3 Esp. 81 ; 6 R. R. 814, in reference to a Wharfinger's 
General Lien. 

" [1805] 6 East, 519, at p. 528 ; 8 R. R. 520. 

" 3 Bos. & P. 126 ; 6 R. R. 727. 


lien to go out of their hands without indemnifying 
themselves by setting up a claim to a general 

For these reasons a general lien can only be 
claimed as arising from dealings in a particular trade 
or line of business, such as wharfingers, factors, and 
bankers, in which the existence of a general lien has 
been judicially acknowledged, or in other trades 
where there is express evidence of custom." 

It has always been held that no claim to a general 
lien can be maintained where it would contravene or 
interfere with the prior common law right of another, 
not claiming under the debtor. 

Those under legal liability to accept employment 
are required to give stronger evidence to establish a 
right to a general lien than anyone else, and the 
reason given for this in Rushforth v. Hadfield " is 
that he is encroaching upon the right which every 
subject possesses of compelling him to receive goods 
for the purposes of his trade without annexing a 
condition for a general lien. In this case a general 
lien was refused to a common carrier on grounds of 
insufficient evidence of usage. It must be remem- 
bered that a general lien, which might otherwise 
exist, may be excluded by the terms of a special 
contract. 17 

• " Boch v. Gorrissen, 30 L. J. Ch. 39 ; Leuckhart v. Cooper, 
3 Bing. N.C. 99; 6 L. J. G.P. 131; 43 R. R. 602. 
" 6 East, 519, and 7 East, 224 ; 8 R. R. 520. 
" Kinnear v. Midland Railway, 19 L. T. 387. 


We will now consider individually the various 
classes of persons who have been held to possess a 
general lien — namely, factors, wharfingers, bankers, 
stockbrokers, solicitors, insurance brokers, ware- 
house keepers, packers, and calico printers. It has 
been held that other classes of persons have proved 
the right to a general lien in certain particular locali- 
ties (such as fullers and dyers), but no other claims 
to general liens of other than local application have 
been established. 

Factors. — Where there is a general course of 
dealing between a merchant and a factor the latter 
may retain the goods of the former for the general 
balance due to him." This balance will include any 
moneys which will become due on bills accepted by 
the factor on behalf of the merchant." The factor 
will, however, only obtain a lien in respect of goods 
dealt with in the ordinary course of business." 

In order to obtain a general lien as a factor the 
agent must be entrusted with the possession of goods 
for the purposes of sale, as, as in the general rule, 
the factor will not be entitled to a general lien unless 
he has possession." If the goods have been sold the 
lien will extend to the price," and this even if the 
moneys do not come into the hands of the factor 

" Cowell v. Simpson, 16 Ves. 280 ; 10 R. R. 181. 

" See In re Fawcus; ex parte Buck [1876] 3 Ch. D. 795. 

" Cumpston v. Haigh [1836] 5 L. J. C.P. 99. 

31 See Stevens v. Biller [1883] 25 Ch. D. 31— C.A. 

" Kroger v. Wilcox [1753] Amb. 252. 


, until after the bankruptcy of the merchant." It is 
doubtful, however, whether the factor's lien will 
extend to a debt due before the character of a factor 
commences." The lien will exist until all debts of 
the bankrupt principal, for which the factor is liable, 
have been paid. 25 

It is, perhaps, scarcely necessary to add that a 
factor's general lien is governed by any express 
agreement that may have been entered into, and that 
the rights given by such agreement will override and 
exclude the general lien arising by custom. 

Wharfingers. — A wharfinger has a general lien on 
the goods of his customers placed in his custody for 
his charges and for general balance due from 
owner." The lien attaches, notwithstanding that the 
property in the goods is not vested in the person 
depositing them with him, if he received the goods 
in good faith without notice of want of ownership." 
The lien only extends to wharfage, and not to 
labourage or warehouse rent. 

It should be noted that wharfingers are not 
entitled at common law, nor has any usage been 
established which entitled them to a lien upon goods 

" Bobson v. Kemp [1803] 4 Esp. 233 ; 8 R. R. 831. 

** Houghton v. Matthews, 3 Bos. & P. 485, per Chambers, but 
see judgment of Ld. Alvarez ; 7 R. R. 815. 

" Foxcroft v. Wood [1828] 4 Russ. 487; 28 R. R. 161. 

*' See Naylor v. Mangles [1794] 1 Esp. 109; 5 R. R. 722; 
Spears v. Hartley [1800] 3 Esp. 81; 6 R. R. 814; Hoet v. 
Pickering [1878] 8 Ch. D. 372 ; 47 L. J. Ch. 527. 

17 See Holdemeas v. Gollinson, 7 B. & C. 212 ; 1 M. & R. 55. 


not actually landed upon their wharves, even though 
the vessels in which the goods are, be fastened to the 
wharf and are unloaded in that situation/" 

Bankers. — The bankers' general lien arises from 
the law merchant, or general custom of merchants, 
which has been recognised and incorporated in the 
common law." This lien extends to all securities 
and money deposited by a customer, or on his behalf, 
with the banker in the capacity of a banker. It has 
been held to attach to a policy of assurance," a share 
certificate, &c." 

The lien will not attach — 
(a) Where there is an inconsistent special agree- 
ment." This is in accordance with the 
, general principles of the law of lien. For 
this reason it will not attach to property 
deposited for a particular purpose, as, for 
example, bills or money paid in to meet 
specific cheques or bills accepted payable at 
the bankers." But if property deposited for 
a particular purpose is left in the hands of 
the banker after that particular purpose is 
satisfied, the general lien will usually attach. 
Thus, in In re London fy Globe Finance 

" See Syedsv. Hay, 4 T. R. 460; 2 R. R. 377- 

" See Brandao v. Barnett and others, 3 C.B. 531 ; 12 CI. & F. 

" In re Bowes [1886] 33 Ch. D. 586. 

" In re United Service Co.; Johnston's Claim [1871] 6 Ch. 
App. 212 ; 40 L. J. Ch. 286. 

" See Farley v. Turner [1857] 26 L. J. Ch. 710 ; 112 R. R. 442. 


Corporation," it was held that securities 
deposited as cover for specific advances left 
in the banker's hands after repayment 
became liable to the general lien. 

(b) When the securities on which the lien is 
claimed do not come into the banker's hands, 
in the capacity of a banker, in the way of 

(c) When securities or valuables are lodged with 
the banker for safe custody only." The 
exact reason is not quite clear, but it may be 
that the deposit for safe custody only is 
inconsistent with the claim for lien, or that 
receipt of valuables for safe custody is not 
part of the ordinary business of a banker. 

(d) When the banker is aware that the money or 
securities in respect of which it would other- 
wise attach is affected by a trust or not the 
actual property of the customer." Thus, 
bankers will not have a lien to secure an 
overdraft on securities deposited by cus- 
tomers, and known by the bank to belong to 
some other person and to have been deposited 
for some special purpose." 

" [1902] 2 Ch. 416. 

" See Brandao v. Barnett [1846] 12 CI. & F. 787. 
" Ibid. Leese v. Martin [1873] L. R. 17 Eq. 224. 
** See Ex parte Kingston; in re Cross [1871] 6 Ch. App. 632. 
" See Cuthbert v. Bobarts, Lubbock & Co. [1909] 2 Ch. 226 ; 
78 L. J. Ch. 529. 


(e) In respect of further advances made after 
notice that the property, in respect of which 
the lien is claimed, belongs, or is mortgaged, 
to a third person." 

As before stated," the lien will attach in respect 
of negotiable securities upon which the bank lends 
money bona fide and without notice, even though the 
securities are the property of a third person, pledged 
without his authority. 

The banker's lien is, as stated in Brandao v. 
Barnett, supra, an implied pledge, and this, in the 
case of negotiable securities, other than bills, notes, 
and cheques, which come into his hands under such 
circumstances as give rise to a lien, enables him, as 
pledgee, to sell on default after request for payment 
and reasonable notice of intention to sell." 

Stockbrokers. — A stockbroker has a general lien 
upon all securities of a client in his possession, 
including securities deposited to secure a specific 
loan, provided they were not deposited in pursuance 
of a specific contract, the terms of which are incon- 
sistent with the general lien." 

" See London & County Bank v. Batcliff [1881] 6 Ch. App. 
Cas. 722; 51 L. J. Ch. 28; Bradford Banking Co. v. Briggs 
[1886] 12 App. Cas. 29 ; 56 L. J. Ch. 364. 

" See Chap. II. p. 29, and cases cited in the note, and also London 
Joint Stock Bank v. Simmonds [1892] App. Cas. 201 ; Bentinch 
v. London Joint Stock Bank [1893] 2 Ch. 120 ; 62 L. J. Ch. 358. 

" See Deverges v. Sandeman [1902] 1 Ch. 579 ; 71 L. J. Ch. 328. 

" See In re London & Globe Finance Corporation [1902] 2 Ch. 
416; 71 L. J. Ch. 893, and Hope & Co. v. Glendinning [1911] 
A.C. 419. 


It is immaterial whether the securities were the 
property of the client or not, unless the broker is 
aware of the want of ownership or the circumstances 
are such that he must be held to be put on enquiry 
as to title." 

Solicitors. — A solicitor has a general lien on the 
papers belonging to his client which have come into 
his possession in his professional capacity. The lien 
is, of course, a right of retainer only, and extends to 
all costs due to him from the client. 

This general lien should be distinguished from the 
common law lien on property recovered or preserved 
by his efforts and the so-called statutory lien enforce- 
able by charging order. The first named is a 
particular lien only, and extends only to the costs of 
recovery or preservation of the particular property 
in respect of which it is claimed. This particular 
lien does not apply to real property," but, otherwise, 
it applies to property of every other description. It 
is really in the nature of salvage, and to enable it to 
arise the property must have been recovered or pre- 
served in consequence of the solicitor's exertions," 
and the solicitor must have been acting on behalf of 
the person against whom the lien is claimed." The 
latter is in the nature of a charge rather than a lien. 

" See Jones v. Peppercorne [1858] John. 430; 29 L. J. Ch. 
158; 123 R. R. 177. 

" Shaw v. Neale [1858] 6 H.L. Cas. 581 ; 27 L. J. Ch. 444. 

" Tmonsend v. Meade and Dooley v. Beade [1835] 4 L. J. 
Ch. 233. 

" Chick v. Nicholh [1877] 26 W. R, 231. 


The Court may, in any proceedings, make a charging 
order in favour of the solicitor employed to conduct 
proceedings against any property recovered or pre- 
served through his instrumentality in respect of his 
taxed costs, drawings, and expenses in such pro- 
ceedings. This is again of a particular and not 
general nature; it arises by order of Court and not 
by custom, and it differs from the last-mentioned lien 
in that it will not be enforced when the debt is statute 

The solicitor's general lien only extends to costs, 
that is to say, taxable costs, charges, and expenses, 
and it will not extend to advances made to the client 
except in the way of disbursements. 

There is no lien in respect of costs not due to him 
in his capacity as a solicitor," and so no lien will 
arise in respect of his remuneration as a land agent," 
nor for his fees as a steward of a manor/' nor in 
respect of papers which come into his possession as a 
town clerk and not in his capacity as a solicitor." 

A solicitor will not acquire a lien for costs due to 
himself alone in respect of documents which come 
into the joint possession of himself and his partner," 
nor, on the other hand, will he acquire a lien on 

" In re Taylor; Stileman v. Underwood [1891] 1 Ch. 590— 

*' In re Walker; Meredith v. Walker [1893] 68 L. T. 517. 

" Champernown v. Scott [1821] 6 Madd. & G. 93. 

" B. v. Sankey [1836] 5 Ad. & E. 71, 423 ; 5 L. J. K.B. 255. 

*• Pelley v. Watlen [1849] 7 Hare, 351 ; 18 L. J. Ch. 281 ; 
82 E. R. 147. 


deeds in his possession for costs due to a firm of 
which he was formerly a member." 

The lien is co-extensive with the rights of the 
client, and accordingly the solicitor has no higher 
right as against third persons than the client himself 
had." Thus, a lien against a tenant for life is of no 
effect against the remainderman," and a mortgagee's 
solicitor cannot retain the mortgage deeds for costs 
due from the mortgagor." 

The lien is not destroyed by a change in the 
solicitor's firm," nor by its dissolution," nor will it 
be put an end to by the death of the solicitor." 

When there is a change of solicitors in an action, 
the first solicitor, unless discharged for misconduct, 
cannot be compelled to produce or hand over the 
papers in his hands until his costs are paid, unless 
the change is caused by the refusal of the solicitor 
himself to, proceed with the matter." If he thus dis- 
charges himself he may be ordered to hand them over 
to the new solicitor on the latter undertaking to hold 
them without prejudice to the lien and to hand them 
back on completion of the action, and also to permit 

" In re Gough; Lloyd v. Gough [1894] W. N. 76. 

52 See judgment of Ld. Oanworth in Pelley v. Watlen [1849] 
ante, p. 43. 

" Ex parte Nesbitt [1865] 2 Sch. & Lef. 279. 

" In re Nicholson; ex parte Quinn [1884] 53 L. J. Ch. 302. 

" Pelley v. Watlen, supra. 

" In re Gough; Lloyd v. Gough, supra. 

" Kellett v. Kelly [1842] 51 Bq. R. 34. 

" In re Faithfull; ex parte London, Brighton and South Coast 
Bailway [1868] L. R. 6 Eq. 325. 


reasonable access in the meantime. The lien will be 
discharged in the usual way. It should, however, 
be noted that the mere obtaining of a charging order 
for the costs will not discharge the lien. 59 

Insurance Brokers. — Insurance brokers have a 
lien upon the policies of their employers in their 
hands, and upon the money received by them upon 
those policies for general balance due to them on any 
assurance account from the employer." If an agent, 
however, effect an insurance for a principal, and the 
broker is aware of the agency, he cannot on the 
bankruptcy of the agent retain the policy for a 
general balance due from the agent, but only for 
premium and commission due in respect of that 

It appears that the general lien only extends to 
the balance of the insurance account and does not 
extend to transactions between broker and employer 
having no relation to the insurance. 

A mercantile agent in this country of a merchant 
carrying on business abroad, who effects a policy in 
accordance with his authority, even though not an 
insurance broker, is entitled to a general lien upon 
it for general balance due to him from principal while 

" In re Lumley [1892] 37 Sol. J. 83. 

,0 See Whitehead v. Vaughan [1785] Co. B.L. 566; Parker 
v. Carter [1788] Co. 567. 

" See Moans v. Henderson [1801] 1 East, 335, and Mann v. 
Shiffner [1802] 2 East, 523; also Fairfield Shipbuilding & 
'Engineering Co., Lim. v. Garner, Mountain & Co., Lim. [1911] 
27 T. L. R, 281. 


the policy is in his hands or the hands of an insurance 
broker employed by him." 

Warehouse Keepers. — Warehouse keepers have a 
general lien for their charges and expenses in respect 
of goods warehoused with them." 

A custom for them in London to have a general 
lien on all goods for all moneys due from customers, 
for all advances made or expenses incurred in the 
payment of goods or freight, or the entering and 
landing of goods, was held to be unreasonable and 
bad in Leuckhart v. Cooper.' 1 

Packers. — Packers have a general lien, being in 
the nature of factors, and this extends even to money 
lent to the debtor." 

Calico Printers. — Calico printers appear to have 
a general lien for work done in their business." 
Unlike packers, however, they cannot claim a general 
lien to cover money lent, nor does the lien extend to 
any other matter outside work done in respect of 
calico printers' business. 

Where calico goods are delivered to a person to 
have them printed, and such person delivers them to 

" See Godin v. London Assurance Co. [1758] 1 Burr. 491, 493 ; 
Mann v. Shiffner [1802] 2 Bast," 523. 

" See Sill & Sons v. L. C. Mkts. Cold Storage Co., Lim. 
[1910] 102 L. T. 715. 

" 3 Scott, 521 ; 6 L. J. C.P. 131. 

" See Green v. Farmer [1768] 4 Burr. 2214, 2222; In re 
Witt; ex parte Shubrook [1876] 2 Ch. D. 489— C. A. ; 45 L. J. 
(Bey.) 118; Ex parte Beeze [1748] 1 Atk. 228. 

" Weldon v. Gould [1801] 3 Esp. R. 268 ; 6 R. R. 832. 


a calico printer for that purpose, to whom he is 
indebted, the calico printer may hold those goods 
against the owner by virtue of his lien." 7 

From the decision in Lilley v. Barnsley," it would 
seem that by a custom of trade in Manchester, as 
between calico printers and engravers, the latter have 
no right of general lien for balances due from the 

As before stated, no other trade has established 
its right to a general lien of other than local 

Fullers. — Fullers have, in general, only a specific 
lien,' 9 but in Sweet v. Pym " the fullers of Exeter 
were held to have a general lien. 

Dyers. — For many years the dyers strove hard to 
establish a right to a general lien, but it appears this 
was only proved in reference to particular districts 
and not everywhere. 71 

In two cases subsequent to Green v. Farmer — 
namely, Savill v. Barchard" and Humphreys v. 
Partridge," the right was held proved, but in Close 
and Another, as assignees of Riddel v. Waterhouse," 
the right was held negatived as regards Halifax. 

" WeUon v. Gould [1801] 3 Esp. R. 268 ; 6 R. R. 832. 

" 1 Car. & K. 344 ; 70 R. R. 803. 

" Rose v. Mart, 2 Moore, 547 ; 20 R. R. 533. 

78 1 East, 2 ; 5 R. R. 497. 

" See Green v. Farmer [1768] 1 Bla. R. 651. 

" [1801] 4 Esp. 53. 

'* [1803], cited Montague B. L., vol. iv. p. xviii. note (a). 

74 6 East, 523, note (e). 


The dyers of Manchester, in the case of Kirkman 
v. Shawcross," established a right to a general lien 
where a meeting of the dyers passed resolutions that 
they would only accept goods for purposes of their 
business on the basis of a general lien, and advertised 
their resolutions. 

Bleachers. — In Plaice v. Allcock " a general lien 
was held to have been established in the bleaching 
trade at Nottingham. 

" [1794] 6 T. R 14 ; 3 R. E. 103. 
" 4 P. & F. 1074. 



The particular or specific lien, that is to say, the 
right to retain possession of specific chattels until 
claims arising solely in respect of those chattels have 
been satisfied, has always bejen favourably regarded 
by the law as consonant with every principle of equity 
and justice. Chief Justice Best said, in the case of 
Jacobs v. Latour, 1 "As between debtor and creditor, 
the doctrine of lien is so equitable that it cannot be 
favoured too much." 

Such a lien may arise ' either by express contract 
between the parties, by contract implied from the 
circumstances of any particular case, or the general 
course of dealing between the debtor and creditor, 
or by operation of law. 

Express Contract. — The first of these requires 
but little discussion, for a contract is governed by 
such terms as are agreed between the parties, and 
the right of lien is created in any case where the 
parties choose expressly to stipulate for it/ To 

1 5 Bing. 130; 6 L. J. (o.s.) C.P. 243. 

a See Kirchner v. Venus, 12 Moore P.C. 361; 5 Jur. (N.S.) 

' Chapman v. Allen, Cro. Car. 271. 


constitute a lien in this way, however, there must be 
a clear agreement for the specific appropriation of 
the particular property.* 

Most of the cases of express lien usually resolve 
themselves under one or other of two main headings. 

(a) Execution of particular purpose. — The first 
comprises cases where goods are placed in the 
hands of a person for the execution of some par- 
ticular purpose, with an express contract that they 
shall be considered as a pledge for the labour or 
expense which such execution may occasion. Under 
this heading would be placed a special stipulation by 
an agister for a lien on the cattle agisted in his 

(b) Pawn. — In the second group of cases the 
property is merely pawned or pledged to another 
for bare security, for the sole purpose of being a 
security for a loan made to the owner on the credit 
of it. In such cases the right of lien is governed 
strictly by the contract under which it arises. This 
latter group comprises cases of pawn under which 
the pawnee acquires a special property in the thing 
pledged to detain it for his security until it is 
redeemed, the general property remaining in c the 
pawnor. In this way a pawn differs from an 
ordinary case of lien, where the creditor has only a 
right of detention, and not a special property, and it 
also differs from a mortgage as, in the case of the 

4 Jones v. Starkey, 16 Jur. 510. 


latter, the property is actually conveyed or trans- 
ferred to the mortgagee. 

It should be noted that a pawn of goods, without 
authority of the owner, will not create a lien,' and 
there is no doctrine of market overt for pawning as 
there is for sale.' A lien of a pawnee differs from a 
lien arising by custom in that it is transferable,' but 
it appears that a pawnee cannot create a greater 
interest in it than he himself had. 

Implied Contract. — The second manner in which 
a lien may arise is by implied contract. Such a con- 
tract may be implied from the conduct of the parties 
in their dealings with one another, or from custom or 
usage. As a particular lien is favoured by the law 
it is much more readily implied than a general lien. 
In Simond v. Hibbert' a particular lien was implied 
from the general course of dealing against produce of 
the West Indian estates. 

It should be noted that a lien will not be implied 
solely from the existence of an equitable right, and 
that a mere direction of " B," to whom goods are 
consigned, to pay " C " a sum of money out of the 
proceeds, will not give "C" a lien on those 

Operation op Law. — The remaining way in 
which a particular lien may be created is by operation 

" Moans v. Henderson, 1 East, 335. 

* Packer v. Gillies, 2 Camp. R. 336. 

' Bemainbray v. Metcalf, 2 Vera. 691, 698 (S.C.). 

• Russ. & M. 719 ; 4 L. J. Ch. 38. 
' Ex parte Heywood, 2 Rose, 355. 


of law. Many of the cases under this heading might 
reasonably be referred to implied contract, as, very 
often, the lien has arisen by custom, and the right 
exists because parties who do not expressly agree to 
the contrary must be held to contract with reference 
to such custom. I prefer, however, as a matter of 
convenience, to group them together under this 

(a) When creditor legally liable to perform ser- 
vices to owners of goods. — The first category under 
which this right arises is where the creditor is com- 
pellable by law to receive goods or to perform certain 
services to the owners of such goods. The law 
imposes the duty and, as a sort of compensation, it 
gives a particular lien or power of retaining the goods 
for the indemnity of the party receiving. 10 This is 
probably the earliest form of lien, which was known 
as the right of retainer in early English law. 
Originally this right of retainer was only co-extensive 
with the workman's obligation to receive the goods. 

The principal cases coming under this heading 
are the liens of carriers and innkeepers, and it should 
be noticed that such persons generally can only, 
apart from special contract, claim a particular lien, 
and to give rise to a general lien very strong proof of 
custom will be required." The law gives a particular 

10 See Yorke v. Orenaugh, 2 Ld. Raym. 866, and Naylor v. 
Mangles, 1 Esp. R. 109 ; 5 R. R. 722. 
" See ante, p. 36. 


remedy, and it will not lightly permit a claim to a 
greater right to succeed. 

The lien arising under this heading is peculiar in 
that it attaches to property although not belonging to 
the debtor, and it is in fact (except as hereafter men- 
tioned) immaterial to whom the property belongs." 
The lien will even arise in respect of goods delivered 
to a carrier against the owner's will, as, for example, 
by a thief." The person receiving must, however, 
receive in good faith, and if he knows that the person 
from whom he receives is a wrongdoer the lien will 
not attach." 

Carriers. — A common carrier is a person who 
undertakes generally to carry goods of all persons 
indifferently for hire, and masters and owners of 
ships, lightermen, proprietors of waggons, &c, come 
within the category and are entitled to, a lien." 
Carmen and furniture removers are not generally 
common carriers, and they have no lien." 

The carriers' lien only extends to the charges for 
carriage apart from express or implied contract, 17 

" See Bobins & Co. v. Gray [1895] 22 Q.B. 501— C.A. ; 
65 L. J. Q.B. 44; Yorke v. Grenaugh, 2 Ld. Raym. 866, and 
Exeter Carriers' Case, cited by Holt, C.J., in the latter case. 

" Mulliner v. Florence [1878] 32 Q.B. D. 484— C.A. ; 47 L. J. 
Q.B. 700. 

14 See Johnson v. Hill [1822] 3 Stark. 172 ; 23 R. R. 764. 

15 See Skinner v. Upshaw & Son [1701] 2 Ld. Raym. 752, and 
Oppenheim v. Bussell, 3 Bos. & P. 42, 46, and 83 ; 6 R. R. 604. 

" See Electric Supply Stores v. Gaywood [1909] 100 L. T. 
855, and Hirst v. Page & Co. [1891] 7 T. L. R. 537. 
" See Lambert v. Bobinson, 1 Esp. 119. 


but a railway company has a lien for goods deposited 
in its cloak-rooms for cloak-room charges." It 
should be noted that the carrier's right to retain 
cannot be supported in opposition to a consignor's 
right to stop in transit." 

Innkeepers. — Innkeepers can retain the goods of 
a guest for the expenses of his board and lodging and 
can retain a horse for its keep, and it is not even 
necessary that any previous demand for payment 
should have been made. The mere fact of putting 
up a horse at an inn will constitute the owner a guest 
for the purpose of giving rise to a lien, even though 
the owner himself lodge elsewhere," but merely 
leaving goods at the inn will not constitute the owner 
a guest for this purpose, and the innkeeper can claim 
no right of lien for the charges for storage. 

Only innkeepers are entitled to this lien, and 
lodging housekeepers, who take in lodgers to lodge 
and board, and people who let out stables are not 
innkeepers, and they have no liability thrown upon 
them to accept all and sundry as guests, and 
accordingly, on the other hand, they have no lien for 
the charges." 

The innkeeper's lien will extend to all goods of 
the guest which are in fact received by the inn- 

" Singer Manufacturing Co. v. London and South-Wettern 
Bailway [1894] 1 Q.B. 833 ; 63 L. J. Q.B. 411. 

" Oppenheim v. Bussell [1802] 3 Bos. & P. 42 ; 6 R. R. 604. 

"° See Yorke v. Grenaugh, 2 Ld. Raym. 866. 

21 See Parkhurst v. Foster, Salk. 387, and Judson v. Etheridge 
[1833] 1 Cr. & M. 743; 6 L. J. Ex. 300. 


keeper, and it is not confined to such goods as the 
latter is, as such, bound to receive. The innkeeper 
must receive the goods in his capacity as such, and 
consequently no lien will attach as security for money 
lent, at any rate, if the goods are stolen." 

Farriers. — Farriers who are bound to shoe horses 
brought to them for the purpose might claim a lien 
on this ground," but their lien is usually placed under 
the general heading of liens of persons who have 
spent money, skill, or labour on property, which are 
next considered. 

(b) Where creditor claims lien on property in 
respect of which he had spent money, skill, or labour. 
— Not every bailee is entitled to a lien, but it is 
clearly established that where goods are delivered to 
a tradesman for the execution of the purposes of his 
trade upon them he is entitled to a particular lien." 
This is an extension of the first rule under which 
persons compellable by law to receive goods obtain a 
particular lien on them. Though there is here no 
liability on the creditor to receive the goods, yet it is 
legally recognised that it would be unfair on him, 
after he has expended his money, or his skill, on the 
property, to allow the debtor to take the goods away 
without recompensing him. 

" Matsuda v. Waldorf Hotel Co., Lim., 27 T. L. R. 153. 
" See Whitaker on the Bight of Lien [1812] p. 113, and 
Montague on the Law of Lien [1820] p. 25. 

" Ex parte Beeee, 1 Atk. 228 ; Ex parte Ockenden, 1 Atk. 236. 


The test is, therefore, the expenditure of money, 
skill, or labour, and where such expenditure exists a 
lien follows, and without it the creditor is left to his 
usual remedy by action. This may be most easily 
seen by a study of examples. An artificer, to whom 
goods are delivered for the purpose of being worked 
up; a farrier, by whose skill an animal is cured of 
disease;" a horse-breaker, by whose skill an animal 
is rendered manageable ;" the owner of a stallion for 
fees for covering on a mare ;" and a trainer for fees 
for training a horse delivered to him for the pur- 
pose," have all been held entitled to a particular lien 
for their charges. A tailor has a particular lien " 
for the whole price of a suit upon any part of it." 

In all these cases some money, skill, or labour 
was spent on the property. Apart from express con- 
tract, however, an agister has no such right, since he 
does not by his skill or labour confer any additional 
value;" nor has a livery-stable keeper, for the same 

" Bushforth v. Hadfleld [1806] 7 East, 224; 8 R. R. 520; 
Scarf e v. Morgan [1838] 4 M. & W. 270; 7 L. J. Ex. 324; 

51 R. R. 568. 

" Judson v. Etheridge [1833] 1 Cr. & M. 743 ; 6 L. J. Ex. 300 ; 
Scarf e v. Morgan, supra. 

" Scarfe v. Morgan, supra. 

" Bevan v. Waters, 3 Car. & P. 520 ; Jacobs v. Latour, 2 M. 
& P. 20; 6 L. J. (o.s.) C.P. 243, unless destroyed by agreement; 
see Forth v. Simpson, 13 Q.B. 680 ; 18 L. J. Q.B. 263 ; 78 R. R. 

** Chapman v. Allen [1632] Cro. Car. 271. 

" Blake v. Nicholson, 3 M. & S. 167 ; 15 R. R. 455. 

" See Jackson v. Cummins, 5 M. & W. 342 ; 8 L. J. Ex. 265 ; 

52 R. R. 737, and Chapman v. Allen, Cro. Car. 271. 


reason, a lien on horses standing at livery for the 
price of stabling and food." 

Owner must Authorise Expenditure to give 
rise to Lien. — The work in respect of which the 
charges arose giving rise to the lien must have been 
done by the order or at the request of the owner or 
of some person authorised by him. A voluntary 
unauthorised payment by the person in possession is 

Examples. — In Stone v. Lingwood " duty was, 
without authority, paid on a consignment of 
elephants' teeth, and the creditor unsuccessfully 
endeavoured to retain them until repayment of the 
amount, and for the same reason a lien was refused 
in respect of a claim for the keep of a stray dog in 
the case of Binstead v. Buck." 

Accordingly no lien will be created in favour of 
a solicitor for costs on documents used in winding up 
a company as against the liquidator, who is not the 
owner," nor will a lien for costs of a marriage settle- 
ment be upheld in favour of a solicitor employed by 
the husband as against the trustees in respect of the 
settlement." In Hiscox v. Greenwood," where a 

" See Yorke v. Grenaugh, 2 Ld. Raym. 866, and Hunter v. 
Berkeley, Esp. N. Pri. 583. 

" 1 Str. 657. 

" 2 Bla. R. 1117. 

" In re Union Cement & Brick Co. ; ex parte Pulbrook [1869] 
4 Ch. App. 627. 

** In re Lawrence; Bowker v. Austin [1894] 1 Ch. 556; 

63 L. J. Ch. 205. 
" 4 Esp. 174. 


coach was broken by the negligence of a servant and 
was without authority taken by him to a coachbuilder 
for repair, it was held that the coachbuilder had no 
lien for his charges. It appears, however, that if 
the coachbuilder had good reason for presuming 
authority, as, for instance, if he had previously 
received coaches to repair from the master, he might 
have been able to claim the lien." The case of 
Keene v. Thomas " should also be noted. There a 
dogcart, comprised in a hire-purchase agreement, 
was injured and sent to the defendant, a coach- 
builder, to repair. Instalments on the hire-purchase 
agreement being in arrear, the plaintiff sought to 
recover the cart from the coachbuilder, and it was 
held that the hirer had authority to send the cart to 
be repaired, and therefore the defendant's lien was 
good as against both hirer and plaintiff. Also, on 
the authority on Hussey v. Christie," a servant would 
have sufficient authority to deliver cloth to a tailor to 
make his master's livery, to entitle the tailor to obtain 
a lien for the price. 

These cases of lien by operation of law, with 
which we have now dealt, refer to the lien in the 
hands of a bailee. 

(c) In respect of money due for sale of goods. — 
Another very important class comprises the lien 
accorded to an unpaid vendor of goods in respect of 

" See Yorke v. Grenaugh, 2 Ld. Raym. 866. 
" [1905] 1 KB. 136 ; 74 L. J. K.B. 21. 
" 9 East, 433; 9 R. R. 585. 


the purchase money. This is now governed by the 
Sale of Goods Act, 1893, but many years prior to this 
statute it was decided, in the case of Mills v. 
Gorton," that where there is a sale of goods, and 
nothing is specified as to delivery or payment, 
although everything may have been done to divest 
property out of the vendor, and throw upon the 
vendee the risk of the goods, there still results to the 
vendor out of the original contract a right to retain 
the goods until the payment of the price. 

By section 39 of the Act of 1893 it is provided 
that although the property in the goods may have 
passed to the buyer, the unpaid seller, as such, has 
a lien on the goods for the price while he is in pos- 
session of them. 

The unpaid seller in possession is entitled to 
retain possession until payment or tender of the 
price — 

(a) Where the goods are sold without any stipu- 
lation as to credit. 

(b) Where the goods have been sold on credit 
but all credit has expired. 

(c) Where the buyer becomes insolvent." 

He may exercise the right of lien notwithstanding 
that he is in possession of goods as agent or bailee 
for the buyer." Where the unpaid seller has made 
part delivery of the goods he may exercise his right 

41 3 C. & M. 504, 571. 

" 56 & 57 Vict. c. 71, s. 41 (1). 

" Ibid. s. 41 (2). 


of lien or retention on the remainder, unless part 
delivery has been made under such circumstances as 
to show an agreement to waive his lien or right of 

(d) Salvage. — Another case of lien by operation 
of law is that in respect of salvage, in respect of 
which a lien was extended by common law to persons 
who, at the risk of personal safety, effected recovery 
of property on ships at sea." 

It appears that the essentials for the lien are — 

(1) That there should be risk of personal safety. 

(2) That, as a result of the services, the property 
should be recovered. 

(3) That property should be saved. There is no 
salvage for saving of life only. 

(4) That the property should be saved at sea. 
The mere finding of a wreck, or the recovery of 

lost property on land, are not within the grounds 
upon which the right of lien has been allowed. Con- 
sequently a finder of a horse or dog has no lien for 
the keep." The reason was given by Whitaker in 
1812, in his work on the " Law of Liens," for the 
non-extension of the right of lien to lost property on 
land, as " the liability to fraud where people might 
set other people's property loose in order to find it." 

" 56 & 57 Vict. c. 71, s. 42. 

" Hartford, v. Jones, 1 Ld. Raym. 393, and Baring and 
another v. Bay, 8 East, 57. 

" Nicholson v. Chapman, 2 Hy. Bl. 254; Binstead v. Buck, 
2 Bla. R. 1117. 


The subject of salvage is now dealt with under the 
provisions of the Merchant Shipping Acts, and it 
gives rise to a maritime lien which does not include 
or require possession. 

(e) Goods taken under a legal right. — There 
remains one case of lien by operation of law, with 
which we have not yet dealt, and that is in respect 
of goods taken under a legal right. There is only one 
case where a lien has been allowed under this heading 
— namely, the lien allowed to the lord of a manor for 
the keep of a horse seized as an estray." The lord 
must demand a sum certain or the lien will be 
defeated by general tender of amends." In Lenton 
v. Cook," where a horse was distrained to compel an 
appearance in a hundred court, it was decided that 
after appearance plaintiff could not justify detention 
of horse until the keep was paid for. 

The exact line of demarcation between these 
cases is somewhat difficult to follow. 

" See Taylor v. Jones, 2 Rol. Ab. 92 (m) pi. 3; Bac. Ab. 

48 Henley v. Welch, 2 Salk. 686. 
" H. 9 Geo. 2, Bui. N.P. 45. 



Nature of Care Necessary. — A person having 
a lien is bound to take reasonable care of the goods 
in respect of which the lien attaches, and to take 
ordinary diligence in their care and safeguard. 

Such ordinary diligence is denned by Sir William 
Jones as " the care which the generality of rational 
men use in the conduct of their own affairs, or which 
every person of common prudence, and capable of 
governing a family, takes of his own concerns." 
Such care must, of necessity, differ according to the 
nature of the article in respect of which it is required. 
Proportionately it will be great in respect of a thing 
of great value, or one in respect of which the liability 
to loss or injury is great, and it will be propor- 
tionately small in respect of a thing of small value 
or one less liable to loss or injury. The nature of the 
article and the surrounding circumstances must be 

In the case of a perishable article, such as a 
horse, the care must be such as would be reasonable 
as regards the particular article. 1 The horse must 

1 Scarf e v. Morgan [1838] 4 M. & W. 270; 7 L. J. Ex. 324; 
51 R. R. 568. 


be fed and properly exercised; and, in the same way, 
a cow, the subject-matter of a lien, must be milked. 
Similarly, the property must be kept in a reasonable 
place and with reasonable care," and perishable 
goods, for example, must not be stored in a damp 

As reasonable care is essential, if the article 
suffers injury owing to the neglect or default of the 
person having the lien, the owner is entitled to a 
recompense in damages for his loss. 

When the article is lost by theft the same rule 
will apply, and the liability will depend upon the 
question of the existence or absence of negligence. 
The mere fact of loss by theft will not be even prima 
facie evidence of neglect of ordinary diligence, and 
the facts of the particular case must be considered. 
Similarly, if a thing, without any fault of the person 
who has the lien, perishes through its own intrinsic 
defects, or is damaged or destroyed by inevitable 
accident, no liability for such loss or damage can 

Particular Cases. — An innkeeper who retains the 
goods of a guest under his lien is not bound to be 
more careful in keeping them than he would be of 
his own goods of the same kind." 

When a carrier exercises his lien he must keep 
the goods safely for a reasonable time at a place 

' Great Western Railway v. Grouch [1858] 3 H. & N. 83; 
27 L. J. Ex. 345 ; 117 R. R, 639. 

* Angus v. McLachlan [1883] 23 Ch. D. 330 ; 52 L. J. Ch. 587. 


reasonably convenient for the owner to obtain pos- 
session of them on tender of payment. 4 

When delivery of goods is not taken by the con- 
signee at the end of the journey the carrier must 
keep the goods safely with all reasonable care. 
Although the costs of preservation may be in this 
case recovered by action, the lien for the charges 
of carriage does not extend to the charges for 
preservation. 5 

No Claim foe Costs op Detention. — The keep- 
ing of the subject-matter of a lien is regarded as 
being solely for the benefit of the person entitled to 
the lien and not for the owner of the object, and 
accordingly, in the usual case, no claim in respect of 
the keep may be made. A person having a lien on 
a horse, for example, is bound t<5 provide it with 
food and proper accommodation, but no charge can 
be made against the debtor on account of these 
expenses. To this general rule there are two im- 
portant exceptions. The first of these applies when 
the object of the lien is an article of a productive 
nature, such as a cow, and in this case the law 
permits a reasonable profit being taken from the 
produce as a recompense for the cost and expenses 
to which the creditor has been placed. The milk 
can be retained as a part return for the cost of 

1 Grouch v. Great Western Railway [1858] 27 L, J. Ex. 345 ; 
117 R. R. 639. 

* Great Northern Hallway v. Swaffield [1874] L. R 9 Ex. 132 ; 
43 L. J. Ex. 89. 


feeding the cow in the example. The second excep- 
tion is a statutory one under the provisions of 
section 499 of the Merchant Shipping Act, 1894, 
which provides that when goods are placed in the 
custody of a wharfinger, or warehouseman, under 
the authority of Part VII. of that Act a right is 
given — 

(a) To charge rent. 

(b) To do all reasonable acts deemed necessary 
for their custody and preservation. 

(c) To a lien for rent and expenses. 

Apart from these two cases, however, the general 
rule applies, and the claimant of the lien must put up 
with all the disadvantages of possession and himself 
bear all the costs of detention and preservation. 

Eight of Claimant of Lien to Use the Object 
of the Lien. — Whether the claimant has the right 
to use and enjoy the subject-matter of the lien 
during the period of detention depends entirely upon 
the nature of the object. If use lessens or depre- 
ciates the value, or makes the article in any way the 
worse for it, the person entitled to the lien must make 
no such use." In the case of Cooke V. Haddon ' the 
defendant had a lien on some wine, and it was held 
that he had no right to make use of any part of it 
for his own benefit. On the other hand, if use is 
necessary to preserve the thing a duty is cast upon 

• Coggs v. Bernard [1793] 2 Ld. Raym. 909. 

* [1862] 3 F. & F. 173. 


the claimant to make all necessary use, and he will 
be answerable for any depreciation in value con- 
sequent on non-user. Such a liability devolves upon 
the owner of a lien on a horse to exercise it in a 
proper manner. If use is neither necessary nor 
harmful, but merely beneficial, the person entitled 
may make such use or not at his option. 



The right of lien is one of passive detention only, 
and this is, in general, the only remedy permitted to 
the person entitled to a lien. He may detain the 
subject-matter of the lien but must put up with any 
inconvenience retention may entail. 

This is the case even when retention is attended 
with expense, 1 and there is no right to charge for 
rent or for the expense.* 

If the holder sells the goods he will be liable in 
trover to the owner for full value,' but may counter- 
claim or set off the amount of the debt. There is 
therefore, in general, no power of sale. It is, how- 
ever, perhaps scarcely necessary to add that an 
express condition for sale may be obtained by agree- 
ment, but, apart from this, power of sale may be 
obtained only in certain cases by statute, or by 
special custom in certain particular trades. 

1 Mulliner v. Florence [1878] 3 Q.B. D. 484; 47 L. J. Q.B. 
700. ' 

1 Somes v. British Empire S. Co. [1860] 8 Ch. H.L. 338; 
30 L. J. Q.B. 229 ; 125 R. R. 186 ; Thames Iron Works v. Patent 
Derrick Co. [1860] 1 John. & H. 93 ; 29 L. J. Ch. 714 ; 128 R. R. 
286 ; but see as to lien of Warehousemen, infra. 

' Hostler's Case [1605] Yelverton, 66 ; Clark v. Gilbert [1835] 
2 Bing. N.C. 353, where the principle was applied to a solicitor 
in respect of his general lien. 


The cases where a special right of sale is given 
by statute or custom are (a) pawnbrokers and 
pledgees, (b) innkeepers, (c) the vendor of goods, 
{d) carriers, (e) shipowners, (/) dock companies, 
(g) tea dealers, and (h) bankers. 

(a) Pawnbrokers and Pledgees. — A pawn is a 
particular case of lien by express contract and differs 
from lien in general in respect of this right of sale by 
the person having the lien, on default. A pawn is 
a deposit or pledge of property for bare custody for 
the sole purpose of being a security for a loan made 
on the credit of it. This lien is strictly governed by 
the contract under which it arises. 

At common law, unless a time was fixed for pay- 
ment, the person entitled to the lien must demand 
payment and give notice of intention to sell before 
selling.* From the decision of Stirling, L.J., in 
Deverges v. Sandeman,' it is settled that, to justify 
the sale where no time has been fixed for repayment, 
default in payment must be made after reasonable 
notice of intention to sell has been given. The sur- 
plus beyond the amount due, together with costs of 
sale, belongs to the pledger. 

The law relative to pawn has now been placed on 
a definite footing by the Pawnbrokers Act, 1872, but 
in so far as this Act does not modify or alter the 

* Pigot v. Cubley, 15 C. B. (n.s.) 702; 33 L. J. C.P. 134; 
137 R. R. 725; In re Hardwiek; ex parte Hubbard [1886] 
17 Q.B. D. 690— C. A. ; 55 L. J. Q.B. 490. 

5 [1902] 1 Ch. 579 ; 71 L. J. Ch. 328. 


common law, the latter still applies. In every case 
of pledge, apart from dealings with a pawnbroker, 
there is an implied right of sale.' The Act does not 
apply to loans exceeding 10Z., and only applies to 
loans by a pawnbroker, defined in the Act as " every 
person who carries on the business of taking goods 
and chattels in pawn, including every keeper of a 
shop for the purchase or sale of goods, or for taking 
goods as security, who lends or pays any sum not 
greater than 101. on the goods, or on an arrangement 
for sale and re-purchase." If the amount of the 
loan, while under 101., is over 40s., the provisions of 
the Act apply, unless a special contract is entered 
into, which contract may vary the statutory pro- 
visions. Between 10s. and 40s., the statutory rules 
cannot be varied by contract. Where the loan is 
under 10s., no sale is necessary, as the property 
pawned becomes the pawnbroker's property after 
twelve months and seven days.' When the amount 
of the loan is over 10s., the pledge may be sold at 
a pawnbrokers' auction on the expiration of the same 
period. The property is redeemable even after the 
expiration of the period, but before sale, on payment 
of loan and charges. The auction is to be advertised 
and conducted according to the special provisions of 
the Act, and the pawnbroker may bid and purchase, 
and on purchase is deemed absolute owner. 

8 Halsbury, Laws of England, tit. "Lien," and Deverges v. 
Sandeman, ante. 

7 Pawnbrokers Act, 1872, s. 17. 


After the sale, if there is any surplus over the 
amount of the loan and profit, and the costs and 
charges of sale, it must be paid to holders of the 
ticket, except that any loss of the pawnbroker on any 
other property pledged by the same person, and sold 
before or after, but within twelve months of the sale 
in respect of which there is a surplus, may be set off 
against such surplus. 

The pawnbroker may sue at common law for any 

(b) Innkeepers. — Under the Innkeepers Act, 
1878, s. 1, the landlord, proprietor, keeper, or 
manager of any hotel, inn, or licensed public house, 
shall, in addition to his ordinary lien, have the right 
absolutely to sell and dispose by public auction of 
any goods, chattels, carriages, horses, wares or mer- 
chandise, which have been deposited with him or left 
in the house he keeps, or in the coachhouse, stable, 
stable yard or Other premises, appurtenant or belong- 
ing thereunto, where the person depositing or leaving 
such goods, chattels, carriages, horses, wares or 
merchandise, shall be, or become, indebted to the 
said innkeeper, either for any board or lodging, or 
for the keep and expenses of any horse or other 
animals left with or standing at livery in the stables 
or fields occupied by such innkeeper. No sale is to 
be made until such goods, etc., have been for six 
weeks in the custody of the innkeeper, or upon his 
premises, without the debt being satisfied. Any 
surplus above the debt and costs and expenses of 


sale are to be paid to the person depositing and 
leaving the goods on demand. At least a month 
before the sale the innkeeper is to insert an adver- 
tisement in one London and one country newspaper 
circulating in the district where the goods are 
deposited, containing notice of intending sale of the 
goods, a short description of them, and the name 
of the person who deposited or left them, when 

Apart from the statutory enactment there was no 
general right of sale, and common law gave no such 
right even when the keeping involved expense." 
There was, however, a right by what is known as the 
Custom of London, for an innkeeper to sell a horse 
to pay himself for its keep, when it had eaten more 
than its value, such value being arrived at by 
appraisement by four of his neighbours; and this 
right was recognised in Moss v. Townsend,' and from 
the decision in Robinson v. Walter " there would 
appear to be a similar custom as to Exeter. Each 
horse could only be sold to satisfy a debt due for its 
own food. 11 Page, V.C., in Thames Iron Works Co. 
v. Patent Derrick Co., seemed to consider this a 
general right, but there is no authority to justify this 

* Thames Iron Works Co. v. Patent Derrick Co. [1860] 
1 John. & H. 93 ; 29 L. J. Ch. 714 ; 128 R. R. 286. 

• [1612] 1 Bulstr. 207. 

10 [1616] 3 Bulstr. 269. 

11 Moss v. Townsend, supra. 


(c) Vendors of Goods. — Under the Sale of Goods 
Act, 1893, s. 45 (2), an unpaid vendor may sell goods 
held under a lien for the price. 

(i.) Where the goods are of a perishable nature. 

(ii.) Where the seller gives notice to the buyer 

of intention to resell, and buyer does not 

within a reasonable time pay or tender the 


In these cases the unpaid seller may resell and 

recover from the original buyer damages for any loss 

occasioned by breach of contract. 

(iii.) Where the seller expressly reserves right of 
resale in case buyer should make default, 
original contract is rescinded without pre- 
judice to claim seller may have for 

(d) Carriers. — Under the Railways Clauses Con- 
solidation Act, 1845, s. 97, where a railway company 
hauls the carriage of any person upon its line it may 
detain and sell such carriage or all or any part of the 
goods which it contains, if the toll due for the use of 
the line is not paid on demand. Except for this 
provision the only remedy of a carrier is detention, 
and there is no right of sale, and the railway com- 
pany has no more right than any other carrier to sell 
goods detained in exercise of the company's lien for 
charges for the carriage of such goods. 

(e) Shipowners. — A right of sale of property sub- 
ject to a lien is enforceable even without leave under 
the Merchant Shipping Act, 1894, ss. 495-498. 


By section 494, when goods subject to a lien for 
freight are landed from a ship, and placed in the 
custody of a Warehouseman or wharfinger, and the 
shipowner gives notice that goods are to remain 
subject to lien for freight, they will continue subject 
to the lien in the hands of the warehouseman or 
wharfinger, such lien being discharged upon produc- 
tion of receipt for amount claimed to be due, or upon 
deposit of the amount claimed with the wharfinger 
or warehouseman. 

By section 497, if the lien for freight and other 
eharges is not discharged and no deposit is made as 
provided by the Act, the wharfinger or warehouse- 
man in whose charge the goods are, may, and if 
required by the shipowner, shall, at the expiration of 
ninety days from the time when the goods were 
placed in his custody, or, if the goods are of a perish- 
able nature, at such earlier period as in his discretion 
he thinks fit, sell by auction, either for home use or 
for exportation, the goods or so much thereof as may 
be necessary to satisfy the charges in the Act there- 
after mentioned. Before the sale the wharfinger or 
warehouseman must give notice of it in two local 
newspapers circulating in the neighbourhood, or one 
London and one local, and also, if the address of the 
owner of the goods has been stated on the manifest 
of the cargo, or on any of the documents which have 
come into the possession of the wharfinger or ware- 
houseman, or is otherwise known to him, send notice 
of the sale to the owner of the goods by post. A 


bona fide purchaser shall not have his title invalidated 
by reason of the omission to send the notice, nor 
shall he be bound to enquire whether the notice has 
been sent. 

Section 498 provides for the application of the 
proceeds of the sale by the wharfinger or warehouse- 
man as follows — 

(i.) If goods sold for home use, on payment of 
any custom or excise duties owing in respect 
thereof, then 
(ii.) In payment of the expense of sale, then 
(iii.) In payment of the charges of the wharfinger 
or warehouseman and the shipowner 
according to such priority as may be deter- 
mined by agreement between them, or, in 
the absence of agreement, 

(a) In payment of rent, rates, and other 
charges due to the wharfinger, or 
warehouseman, in respect of the said 
goods, and then 

(b) In payment of the amount claimed by 
the shipowner as due for freight and 
other charges in respect of the said 

The surplus, if any, shall be paid to the owner of 
the goods. 

Section 499 gives to a wharfinger or warehouse- 
man, in whose custody the goods are placed under 
the authority of this part of the Act, a right to rent 
in respect of same, and power, at the expense of the 


owner of the goods, to do all such reasonable acts 
as in the judgment of the wharfinger or ware- 
houseman are necessary for proper custody and 
preservation of the goods, and gives a lien on the 
goods for the rent and expenses. This right extends 
to a wharfinger or warehouseman's claim for rent, 
rates, and other charges due in respect of any goods 
deposited by shipowners with notice that goods so 
deposited are subject to a lien. 

(f) Dock Companies. — Under the Harbours, 
Docks and Piers Clauses Act, 1847, s. 44, in case of a 
refusal or neglect to pay harbour rates, the collector 
of rates may go on board the vessels and demand 
the rates, and on non-payment distrain or arrest such 
vessel and the tackle, apparel, and furniture belong- 
ing thereto, or any part thereof, and detain matter 
so arrested until the rates are paid, and in case rates 
remain unpaid for seven days next after such arrest 
collector may cause matters so distrained or arrested 
to be appraised by two or more sworn appraisers and 
afterwards cause them to be sold, and with the pro- 
ceeds of sale satisfy rates so unpaid and the expenses 
of taking, keeping, appraising, and selling, rendering 
surplus to master of such vessel upon demand. 

Similarly, by section 45, if default is made in the 
payment of rates payable in respect of such goods, 
the collector of rates may distrain or arrest such 
goods, and for that purpose may enter upon any 
vessel within the limits of the harbour, dock, or pier 
in which the goods may be, with such assistance as 


he shall deem necessary, and if such goods have been 
removed without payment of such rates he may 
distrain or arrest any of the goods within the limits 
of the harbour, dock, or pier, or the premises of the 
undertakers belonging to the person liable to pay 
such rates, and may sell the goods so distrained or 
arrested, and out of the proceeds of such sale pay 
the rates due to the undertakers, rendering the over- 
plus, if any, to the owner of such goods on demand. 
The collector of rates, before making such distraint, 
is to pay all duties payable to the Crown in respect 
of goods so distrained or arrested, and the amount of 
the duties so paid may be retained out of the proceeds 
arising from sale of the goods. 

(g) Tea Dealers. — Where there is a custom for the 
vendor to be paid partly by immediate deposit, while 
the vendor retains tea or warrants which represent it, 
there seems to be a well-established custom in the trade 
for power to sell the tea and charge the purchaser with 
deficiency together with interest and other charges on 
non-payment of balance of purchase price." 

(h) Bankers. — Bankers have a general lien which 
is in the nature of a pledge, and is so treated." This 
gives a banker a right to sell negotiable securities, 
such as bearer bonds, on which he has a lien, after 
request for payment and reasonable notice of inten- 
tion to sell." 

11 In re Tate; ex parte Moffatt [1841] 2 Moat. D. & DeG. 170. 
" See Brandao v. Barnett [1846] 12 CI. & F. 787 ; 69 R. R. 204. 
" See Deverges v. Sandeman [1902] 1 Ch. 579 ; 71 L. J. Ch. 328. 



Although all the necessary requirements have 
been fulfilled, and a right of lien has arisen in any 
particular case, the right may subsequently cease and 
be lost in various ways. 

Loss of Possession. — The most important way 
in which this may occur is by loss of possession. As 
before mentioned, it is essential for the creation of a 
lien that the person claiming it must have actual, 
lawful, and continuous possession of the thing in 
respect of which the right is claimed, and it is just as 
necessary for its existence that such possession 
should continue. It therefore follows of necessity 
that, in general, the loss of such possession will cause 
the forfeiture of the lien. 

The most usual cause of loss of possession is by 
voluntary redelivery, and when once this has been 
carried out the right ceases. In the case of Ex parte 
Shank, 1 in 1751, a ship, after repair, was redelivered 
by the claimant's workman to a bankrupt, and it was 
held that the lien for the cost of repairs had been 
destroyed. For a similar reason the lien was held 
to be lost in the case of Kruger v. Wilcox,' where a 

1 1 Atk. 252. 

3 [1755] Amb. 252. 


factor allowed the owner to sell goods through a 
broker and informed the latter that the owner eould 
deal with the goods.' When once redelivery has 
been made possession cannot be recalled,* and there 
is no doctrine of stoppage in transitu in reference to 
such a case, and this is so even though redelivery was 
made by mistake.' 

Revival op Lien on Recoveet op Possession. 
— In the case of a particular lien, at any rate, even 
recovery of possession will not revive the lien unless 
the redelivery was induced by fraud." For this 
reason an innkeeper was held to have no lien for the 
keep of the horses of a carrier put up with him from 
time to time, as he parted with possession on many 
occasions.' He could, of course, retain for the cost 
of the keep on the last occasion. This would appear 
to refer to particular liens only, and when goods 
return again to a person having a general lien such 
general lien will usually revive. The principle is, 
however, not very clearly or firmly established, but 
the case of Whitehead v. Vaughan ' seems to support 
this view. 

Position when Part only Redelivered. — 
Where only part of the property is redelivered it. 

' See also Hartley v. Hitchcock, 1 Stark. 408 ; 18 R. R. 790. 
* Sweet v. Pym [1800] 1 East, 4 ; 5 R. R. 497. 
5 Dicas v. Stockley [1836] 7 C. & P. 587; 48 R. R. 825 ; Bligh 
v. Davies [1860] 28 Beav. 211 ; 126 R. R. 95. 
' See Chap. VIII. 
7 Jones v. Pearle [1722] 1 Str. 556. 
' Cooke's B.L. 526, 579. 


would appear that a lien for the price of the whole 
attaches to the part remaining in the possession of 
the claimant of the lien unless such part-delivery has 
been made under such circumstances as to show an 
agreement to waive the lien." This principle was 
first applied, in Blake v. Nicholson," to the case of 
a tailor who delivered part of a suit of clothes and 
claimed a lien for the whole price on the remaining 
articles, the claim being allowed; but it has now been 
extended to other cases by the decision in Sodergreen 
v. Flight, 11 where a part of a cargo of barrels of tar, 
sold before arrival on bills of lading, was delivered, 
but not the rest. 

The principle of loss of lien by redelivery of pos- 
session applies only to cases where the redelivery is 
voluntary, and does not apply when possession is 
parted with from necessity. An innkeeper will not 
lose his lien upon the horse of a guest merely by 
putting it out to pasture, nor does the captain of a 
ship lose his right of detention in respect of the 
freight on a cargo of tobacco taken to the King's 
warehouse." It should be noted that a shipowner 
may always reserve his lien by giving written notice 
when landing to this effect," or by landing the goods 
on a sufferance wharf — that is to say, one where, by 

' Sale of Goods Act, 1893, s. 42. 

10 3 M. & S. 167 ; 15 R. R. 455. 

11 [1776] cited in Harrison v. Meyer, 6 East, 622. 
11 Ward v. Felton [1801] 1 East, 508. 

" Merchant Shipping Act, 1894, s. 494. 


permission of the Customs Commissioners, goods 
may be landed before the duty is paid." 

So also lien will not be lost by a deposit of 
chattels with a third party on behalf of the person 
entitled to the lien, or where, pursuant to agreement, 
the owner is allowed temporary use of it and duly 
returns it, as it is quite clear there was no intention 
of the parties that the lien should cease." Strictly 
speaking, in these cases, possession is not parted with 
at all. 

Waiver. — Apart from loss of possession, the 
most usual cause of loss of lien is by waiver. This 
may be express and voluntary by the person entitled 
to the lien, or may be implied from the circumstances 
of any particular case. 

(i.) Express. — It is not necessary to discuss 
express waiver at length, for where the parties agree 
between themselves that \he right has ceased it is 
obvious that no subsequent claim to detain the goods 
can be entertained. 

(ii.) Implied. — As regards implied waiver it is 
not possible to do more than consider a few of the 
general principles upon which the Court proceeds in 
arriving at a conclusion that, without there being any 
express agreement, the circumstances show a tacit 
understanding that the lien shall be abandoned. 

" See Stroud's Judicial Dictionary. 

" Levy v. Barnard [1818] 8 Taunt. 149 ; 19 R. R. 484 ; Beeves 
v. Capper [1831] 5 Bing. N.G. 136; 8 L. J. C.P. 44; SO R. R. 


Such a tacit understanding will be deemed to exist 
when the claim has been abandoned for a number of 
years," or, as regards the general lien, where a 
person having a lien on goods for a general balance 
of account merely claims a lien thereon in respect of 
a particular debt. A claim to retain goods on 
grounds differing from those on which the claim for 
lien is based, without mention of the lien, will also 
be considered as implied waiver." In Boardman v. 
Still " an action of trover was brought for some 
brandy, which the defendant claimed as his own. 
Afterwards this claim was abandoned and a claim for 
a lien for warehouse rent substituted, but it was held 
that, by the original defence, any claim to a lien for 
rent, &c, had been waived. 

Implied waiver will also be construed from agree- 
ments for future payment," it being considered that 
the creditor, in giving time for payment, has agreed 
to postpone his remedies, and that such agreement is 
inconsistent with a demand to retain the goods until 
such payment is made. Waiver will also usually be 
implied from an agreement for payment of a reason- 
able price." 

Taking Security. — If security is taken for pay- 
ment at a future date of a debt, for which the creditor 

" In re Noble; ex parte Douglas [1833] 3 Deac. & Ch. 310. 
17 See Weeks v. Ooode, 6 C. B. (n.s.) 367; 120 R. R. 164. 
" [1879] 1 Camp. 410»i. 

" Chase v. Westmore [1816] 5 M. & S. 180 ; 17 R. R. 301 ; 
Crawshay v. Homfray [1820] 4 B. & Aid. SO ; 22 R. R. 618. 
20 Brennan v. Gurrint [1755] Sayer, 224. 



has a lien upon the property of the debtor, the lien is, 
in some cases, destroyed. This really rests on the 
principle of waiver, and will depend on the circum- 
stances of each particular case. The mere fact of 
taking security is, in itself, insufficient, for there must 
be something in the facts of the case or in the nature 
of the security taken inconsistent with, or destruc- 
tive of, the lien." If security be taken on property 
which is already subject to the lien, or which gives 
time for payment," or which gives right to interest 
not otherwise payable," it will be considered that 
these agreements are not consistent with an intention 
to reserve the lien, and waiver will be implied. To 
ascertain whether taking security in these and similar 
cases implies waiving the lien the intention of the 
parties must be regarded, and it must be considered 
whether the security taken was to be cumulative or 

Bills. — Where bills are given as security the 
lien will be treated as merely suspended, and may 
revive on the bills being dishonoured," but revival 
will not result if the bill or note, at the time of dis- 
honour, is in the hands of a third party." 5 

11 See Ex parte Willoughby ; in re Westlake, 16 Ch. D. 604; 
Angus v. McLachlan, 52 L. J. Ch. 587 ; 23 Ch. D. 330. 

"Eewison v. Guthrie, 5 L. J. C.P. 283; 42 R. R. 720. 

" In re Morris [1908] 1 K.B. 473; 77 L. J. K.B. 265. 

" Stevenson v. Blakelock [1813] 1 M. & S. 535. 

" Bunney v. Poyntz, 4 B. & Ad. 568; 2 L. J. K.B. 55; 
38 R. R. 309. 


Solicitors' Lien and Security for Costs. — 
From the dicta of Lindley, L.J., in In re Taylor; 
Stillman v. Underwood," it would appear that a 
solicitor taking security for costs, without explaining 
that he intends to reserve his lien, will waive it. In 
that case the solicitor was held to have lost his lien 
by taking a promissory note signed by the client and 
her husband. The lien was similarly held to be lost 
in In re Douglas, Norman fy Co.," where a charge 
was taken on a reversion to secure costs of nego- 
tiating a loan, no reservation of the lien being made. 

Proving in Bankruptcy of Vendee. — Another 
case of implied waiver arises where a vendor proves 
for the price of the goods under an adjudication in 
bankruptcy against the vendee. He will be held to 
have chosen his remedy, and his right under the lien 
will be waived. 2 ' The mere fact of bankruptcy, 
however, will not, of itself, divest any lien which has 
arisen before the act of bankruptcy. 

Tender. — Apart from loss of possession and 
waiver, lien may be lost by reason of tender by the 
debtor of the amount due. This renders the 
creditor's possession unlawful, and will put an end 
to his right to retain the goods and destroy the lien. 
If a larger sum is demanded in such a way that it 
amounts to an announcement that it is useless to 

" [1891] 1 Ch. 590 ; 60 L. J. Ch. 525. 
" [1898] 1 Ch. 199. 

" Ex parte Hornby, Buck. B.C. 351, 354; Ex parte Solomon, 
1 G. & J. 25. 


tender any smaller sum, tender will be dispensed 
with, and the mere implied tender will destroy the 

Improper Sale or Conversion. — Still another 
way in which lien may be lost is by improper sale or 
conversion. If a person, having a lien, improperly 
sells the chattel or chattels which form the subject- 
matter of the lien he will lose his right, and cannot 
retain the purchase money to satisfy his claim." 
Conversion will have the same effect, and, in Gurr V. 
Cuthbert," it was so held in respect of a vendor who 
improperly cut up and used some hay sold to a pur- 
chaser and to be paid for by instalments. 

Stoppage in Transitu. — The lien of a carrier 
for a general balance of account against a consignee, 
where such lien arises by special agreement, is 
defeated by the consignor exercising the right of 
x stoppage in transitu, but the consignor must pay the 
charges in respect of the particular goods, in 
reference to which the right is exercised, for the 

" The Norway, B. & L. 404. 

" Jones v. fhurlow [1723] 8 Mod. Rep. 171 ; Clark v. Gilbert 
[1835] 2 Bihg. N.C. 353; Mulliner v. Florence [1878] 3 Q.B. D. 
484— C.A. ; 47 L. J. Q.B. 700. 

" 12 L. J. Ex. 309 ; 61 R. R. 787. 

" Oppenheim v. Bussell, 3 Bos. & P. 42 ; 6 R. R. 604 ; Wright 
v. Snell, 5 B. & Aid. 350. 



It now remains to consider how a lien once lost 
may be regained. We have seen that liens may be 
lost by waiver in certain cases : by taking security, 
by proving in the bankruptcy of the vendee, by 
improper sale or conversion, and by tender; and, in 
the case of a carrier's general lien (where it exists), 
by the exercise by the vendor of his right of stoppage 
in transitu. In each of these cases (except as next 
hereafter stated) the right of lien is extinguished, and 
there can therefore be no question of revival. As 
has been seen in the last chapter, where a bill or 
note is given as security the lien may be treated as 
merely suspended, and may revive on bills being 
dishonoured * unless the bill or note is then in the 
hands of a third party.' 

It remains, therefore, to consider under what 
circumstances a right of lien lost, at any rate tem- 
porarily, by reason of loss of possession, may be 

1 Stevenson v. Blakelock [1813] 1 M. & S. 535. 
' Bunney v. Toyntz, 4 B. & Ad. 568; 2 L. J. KB. 55; 
38 B. B. 309. 


revived on the possession being regained. In the 
case of a general lien it is a little doubtful, in view 
of the decision in Whitehead v. Vaughan,' whether 
the lien will not always revive on possession being 
properly regained. In the case of a particular lien, 
however, the lien will only revive where the 
redelivery of possession was induced by fraud or by 
force. In these cases regaining possession will 
revive the lien, even if possession is only regained by 
stratagem.* For this reason, in Hawse v. Crowe,' 
where cheques, subsequently dishonoured, were 
fraudulently given to obtain possession of goods 
which had been sold on terms that they were to be 
paid for in cash, the lien was held to revive when 
possession was regained. Again, in Wallace v. 
Woodgate' it was held that if a consignee carries 
away goods against the will of the carrier, while they 
are being retained in exercise of a lien for carriage, 
the lien revives on the carrier retaking the goods. 
In reference to the lien of an innkeeper it was 
decided, in Ross v. Branstead,' that if the owner of 
a horse tortiously take him from the innkeeper, who 
has lien upon the horse, the innkeeper may make 
fresh pursuit after it, and, upon regaining it, lien 

■ B.L. 526, 579. 

* Bristol (Earl) v. Wilsmore [1823] 1 B. & C. 514; 1 L. J. 
K.B. 178 ; 25 R. R. 488. 

8 [1826] Ry. & M. 414. 

• [1824] Ry. & M. 193. 
' 2 Roll. 438. 


will revive. But the difference between this and a 
voluntary permission to the creditor to remove the 
horse must be noted, for if the innkeeper suffer 
the horse of the customer to be taken away, and the 
horse is, on some future occasion, brought to the 
inn, the innkeeper's lien will not revive.' 

A lien will also revive when the owner is allowed 
temporary use of the chattel pursuant to an agree- 
ment, and duly returns it, though this might be 
considered rather a case where the lien is temporarily 
in abeyance, and not lost. It is founded on the 
obvious intention of the parties that the lien was not 
intended to be waived. 

Whitaker, in his " Treatise of the Law Relative 
to the Right of Lien" (1812), cites Copland V, 
Stein ' as authority for saying that where a com- 
modity is of a perishable nature, and goods are 
delivered to owner upon a proper agreement that lien 
shall await application to the Court, this redelivery 
will not divest the lien. 

There is also one other case where re-obtaining 
possession may revive a lien — namely, where a 
vendor exercises his right of stoppage in transitu. 
Where an unpaid vendor consigns the goods to the 
vendee, and whilst the goods are in course of transit, 
before delivery to the vendee, the vendor or his 

• Jones v. Pearle, 1 Str. 556 ; Jones v. Thurlow, 8 Mod. 171. 

• 8 T. R. 199. 


agent desires to regain possession (as e.g. owing to 
information of the bankruptcy of vendee), he can 
exercise his right of stoppage in transitu, and direct 
the carrier to return the goods to him or his agent. 
In such a case, although the lien is lost on the goods 
being consigned to the vendee, it will be revived as 
soon as possession is again obtained. 



have no right of lien, except by special agreement, 56. 


general lien may be secured by, 32. 
specific lien may be secured by, 49. 


must co-exist with corpus in true possession, 4. 

definition, 5. 

does not involve a rightful claim, S. 

need not be on one's own behalf, 5. 

need not be specific, 6. 


entitled to particular lien on goods delivered to him for purpose 
of being worked up, 56. 


entitled to lien for general balance on all securities, 39, 40. 
except where there is an inconsistent special agreement, 39. 
or when received for a special purpose, 39. 
or when lodged for safe custody only, 40. 
or when, to knowledge of banker, property is affected with 
a trust, or not the property of the debtor, 40. 


extends to all securities and money deposited by a customer, 39. 

extends to property of third party if received bona fide without 
notice, 41. 

is in nature of implied pledge, 41. 

gives right to sell negotiable securities after request for pay- 
ment and reasonable notice, of intention to sell, 76. 


90 INDEX. 


when given, as security cause lien to be merely suspended, 82. 
lien will revive on dishonour unless bills in hand of third 
party, 82. 


of Nottingham established right to general lien, 48. 


have general lien for work done, 46. 

lien only extends to work done in respect of calico printer's 

business, 46. 
lien does not extend to money lent, 46. 


acquire a lien over all goods delivered to them for carriage, 
whether goods belong to consignor or not, 28, 53. 

only entitled to particular lien apart from special contract, 52. 

definition, 53. 

masters and owners of ships, lightermen, proprietors of 
waggons, come within description, 53. 

carmen and furniture removers do not come within descrip- 
tion, 53. 


only extends to charges for carriage, except by contract, 53. 
cannot be supported in opposition to right of stoppage in 

transitu, 54. 
goods must be kept for reasonable time, in place reasonable for 

owner to obtain possession, 63. 
power of sale by railway company under Railways Clauses 

Consolidation Act, 1845... 72. 


(See Possessory Lien-.) 

general, 32. 
particular, 49. 
express, 49. 

specific appropriation of particular property necessary, 50. 
for execution for some particular purpose, 50. 

INDEX. 91 

CONTRACT, LIEN BY, continued— 
for mere pawn, 50. 

governed strictly by contract under which it arises, 50. 
implied, 51. 


by lien holder will destroy lien, 84. 


must co-exist with animus possidendi in true possession, 4. 
definition, 6. 
relationships involved, 7. 

(a) to other persons, 7. 

(6) to thing possessed, 9. 
power to exclude others may be very small, 6. 
measure of security for possession necessary which would 

normally and reasonably satisfy purchaser, 7. 
sources from which measure of security derived, 7. 
physical power of possessor, 8. 
personal presence of possessor, 8. 
hiding article possessed, 8. 
by possession of another article with which connected or to 

which accessory, 8. 
custom, 9. 

manifestation of ownership, 9. 
respect for rightful claims, 7, 8. 
security for power to use required, 8. 
when power to use lost, possession lost, 9. 
not lost by voluntary absence, 9. 


power of sale of subject-matter of lien under Harbours, Docks, 
and Piers Clauses Act, 1847... 75. 


in general only entitled to specific lien, 47. 

of Manchester established right to general lien by notice, 48. ■ 

definition, 18. 
principle of equity on which founded, 18. 

92 INDEX. 

EQUITABLE LIEN, continued— 

charge is on property not in claimant's possession, 18. 
unpaid vendor who has parted with possession entitled to, 19. 
purchaser who has paid purchase money before transfer, 

entitled to, 19. 
accorded to partner on dissolution, 19. 

incumbrancer who has paid redemption moneys 

before re-transfer, 19. 
trustee, 19. 

solicitor upon fruits of judgments, 19. 
comparison with possessory lien, 19. 
enforced by judicial sale, 20. 
cannot be claimed when remedy barred under Statutes of 

Limitation, 20. 
comparison with maritime lien, 20. 


lien allowed to lord of manor on horse seized as, 61. 


have right to general lien, 37. 

lien of, extends to moneys due on bills accepted on behalf of 

merchant, 37. 
can only claim lien in respect of goods dealt with in the 

ordinary course of business, 37. 
lien of, when goods sold, will extend to price, 37. 
lien may be governed by express agreement, 38. 


could claim lien on ground of being compelled to accept 

service, 55. 
entitled to lien on horse which has been cured of disease by 

his skill, 55. 


in general only entitled to specific lien, 47. 
of Exeter established right to general lien, 47. 

definition, 22. 
how they arise, 32. 

INDEX. 93 

GENERAL LIENS, continued— 
by contract, 32. 
by notice, 33. 

will be excluded by express inconsistent agreement, 33. 
by custom, 33. 

nature of proof required, 34. 
when established become part of common law, 35. 
always discouraged by Courts, 35. 
can only be claimed in trades where judicially acknowledged, 

or where express evidence of custom, 36. 
to claim, those under legal liability to accept employment must 

give stronger proof than others, 36. 
persons who have right to, 37. 


must belong to debtor to give rise to lien, 27. 
exceptions, 28. 


status constituted by merely putting up a horse at an inn, 54. 
status not constituted merely by leaving goods at an inn, 54. 


entitled to lien on horse he has rendered manageable, 56. 

lien holder not liable for, 63. 


acquire a lien over goods of a guest whether goods are property 

of guest or not, 28, 53. 
• only entitled to specific lien apart from special contract, 52. 
lodging-house keepers and people who let out stables are not 

innkeepers and have no lien, 54. 
retaining goods of guest under lien, not bound to be more 

careful than in respect of their own goods, 63. 


extends to all goods of guest in fact received by innkeeper, 54. 
will not extend to money lent, 55. 

94 INDEX. 

INNKEEPERS' LIEN, continued- 
power of sale of subject-matter under Innkeepers Act, 1878... 70, 
no common law right of sale, 71. 
custom of London as to sale of horse, 71. 


have general lien on policies of their employers, 45. 


extends to moneys received upon policies of employers, 45. 
only extends to balance of insurance account, 45. 
does not extend to other transactions between broker and 
employer, 45. 


derivation of word, 18. 
definition, 18. 
(See also Possessoby Lien, Equitable Lien, Mabitimb 
Lien, General Lien, Pabtictjlab Lien, &c, &c.) 


has no lien except by special agreement, 56. 


(See also Possessoby Lien) 
by loss of possession, 77. 
voluntary redelivery, 77. 

when redelivery made, possession cannot be recalled, 77. 
even when induced by mistake, 78. 

general liens probably revive on recovery of possession, 78. 
when part only redelivered, lien for whole price continues over 

remainder, 78. 
parting with goods from necessity does not cause, 79. 
by waiver (see Waives), 80. 
by tender (see Tendeb), 83. 
by improper sale or conversion, 84. 
by stoppage in transitu, 84. 


no lien in respect of finding on land, 60. 

INDEX. 95 

definition, 20. 
basis, of, 20. 

in respect of what it arises, 21. 
comparison with possessory lien, 21. 
may be enforced by judicial sale, 21. 

defeated by lapse of time under Statutes of Limita- 
tion, 21. 
comparison with equitable lien, 21. 


general lien may be created by, 33. 

definition, 62. 
differs according to nature of article, 62. 


are entitled to general lien, 46. 
lien extends to money lent, 46. 

definition, 22. 

favourably regarded by law, 49. 
how it may arise, 49. 
by express contract, 49. 
by implied contract, 51. 

will not be implied solely from existence of equitable right, 51. 
by operation of law, 51. 

(a) when creditor legally liable to perform services to 

owners of goods, 52. 
(6) where lien claimed on property in respect of which 
money, skill, or labour has been spent, 55. 
owner must authorise expenditure, 57. 

(c) in respect of money due for sale of goods, 58. 

(d) salvage, 60. 

(e) goods taken under legal right, 61. 

96 INDEX. 


lien by express contract, 50. 
difference from ordinary lien, 50. 

mortgage, 50. 
without authority will not create lien, 51. 
no doctrine of market overt for, 51. 
particular case of lien by express contract, 68. 
definition, 68. 


right of lien at common law, 68. 

right of lien under Pawnbrokers Act, 1872... 68. 

power of sale under Pawnbrokers Act, 1872... 69. 


implies power of sale, 69. 


in law not always possession in fact, distinction, 1. 

in popular sense, 1. 

in law may co-exist with possession in fact, 2. 

may exist in fact, but possession in fact not to be regarded as 

legal possession, 2. 
may exist in law, though legal possessor has not in fact the 

custody, 2. 
corporeal and incorporeal, 3. 
corporeal, definition, 3. 
incorporeal, definition, 3. 
is a relation of fact, 4. 
legal, not necessarily lawful, 4. 
elements of, 4, 10. 
definition, 4. 

involves animus possidendi and corpus possessionis, 4. 
derivative, 10. 
immediate, 10. 
mediate, 10. 

three kinds of, 10. 
i. when immediate possessor claims no title for 

himself, 10. 
ii. when immediate possessor claims both on his own 
behalf and on behalf of mediate possessor, 11. 

INDEX. 97 

POSSESSION, Mediate, continued— 

iii. when immediate possessor claims solely for himself 
until determination of a temporary claim, 11. 
immediate and mediate, Salmond's error in respect of, 11. 
exclusive in its nature, 11. 
concurrent, 12. 
in common, 12. 
modes of acquisition of, 12. 
(i.) taking, 12. 
(ii.) delivery, 12. 

(a) actual, 12. 
(6) constructive, 13. 
legal, rules for, 13. 

in fact prima facie evidence of possession in law, 14. 
legal and de facto, common law averse to separating, 14. 
in fact, with manifest intention of sole dominion always 

imports possession in law, 14. 
in fact, lost without loss of animus does not cause loss of 

possession in law, 14. 
in law, when in dispute, follows better right, 14. 
not an essential element in creation of lien in widest applica- 
tion of term, 17. 
actual, essential for lien, 24. 
equitable right to, insufficient for lien, 24. 
for lien must be of continuous and uninterrupted nature, 24. 
for lien need not be direct, 25. 
lawful, essential for lien, 25. 

acquired for particular purpose only will not give rise to 
lien, 26. 

causes loss of lien, 77. 
by voluntary redelivery, 77. 

definition, 17. 

comparison with equitable lien, 18. 
possession essential for, 19. 
merely passive, 19. 
comparison with maritime lien, 21. 
purely personal right, 22. 

98 INDEX. 

POSSESSOEY LIEN, eontiwued^- 
cannot be taken in execution, 22. 
cannot be assigned, 22. 
is either general or particular, 22. 
essentials for valid, 23. 

(i.) actual possession, 24. 
(ii.) lawful possession, 25. 
(iii.) that goods must be goods of debtor, 27. 
cannot be acquired by wrongful act, 25. 
cannot be acquired over goods of a third party, 27, 
except — 

(i.) where person receiving goods is by law compelled to 

receive them, 28. 
(ii.)_ where debtor is authorised by owner to dispose of 

them in that way, 29. 
(iii.) where moneys and negotiable securities are deposited 

with person who takes them in good faith, 29. 
(iv.) under Sale of Goods Act, 1893, s. 25... 30. 
(v.) under Factors Act, 1879... 30. 
care necessary by person having, 62. 
holder liable for damages for lack of reasonable care, 63. 
holder cannot claim for keep of article subject to, 64. 
except where article is of a productive nature, 64. 
or except under section 499 of Merchant Shipping Act, 1894. ..65. 
right of holder to use subject-matter, 65. 
in general one of passive detention only, 67. 
except — 

(i.) Pawnbrokers, 68. 
(ii.) Innkeepers, 70. 
(iii.) Vendor of goods, 72. 
(iv.) Carriers, 72. 
(v.) Shipowners* 72. 
(vi.) Dock companies, 75. 
(vii.) Tea dealers, 76. 
(viii.) Bankers, 76. 
holder must put up with inconvenience retention entails, 67. 
(See also Loss of Possessobt Lien.) 


has lien for cloak room charges on goods deposited in its cloak 
room, 54. 

INDEX. 99 

RAILWAY COMPANY, continued— 

power of sale of subject-matter of lien under Railways Clauses 
Consolidation Act, 72. 


where bill given for amount due is dishonoured, 85. 

in case of general lien by recovery of lost possession, 85. 

by recovery of possession lost by fraud or force, 86. 

where owner allowed temporary use and duly returns goods, 87. 


by lien holder will destroy lien, 84. 


unpaid vendor has lien on goods for price, 59. 

lien may be exercised for whole price on any part not 

delivered, 59. 
power of unpaid vendor to sell, 72. 


lien by operation of law in respect of, 60. 
essentials for former common law lien in respect of, 60. 
lien for, does not extend to lost property on land, 60. 
now dealt with under Merchant Shipping Acts, 61. 


power of sale of subject-matter of lien under Merchant 
Shipping Act, 1894... 72. 


entitled to general lien on clients' papers, 42. 

general, 42. 

on property recovered or preserved by his efforts, 42. 
by charging order, 43. 
general, only extends to costs, 43. 
only arises in respect of costs as a solicitor, 43. 
does not extend to remuneration as land agent, &c, 43. 
is co-extensive with the rights of the client, 44. 
not destroyed by change in solicitor's firm, 44. 
in respect of costs in an action where solicitor discharges 
himself, 44. 

100 INDEX. 

SOLICITORS' LIEN, continued— 

will not be discharged merely by obtaining charging order, 45. 
'will be waived if security for costs is taken without special 
reservation, 83. 


entitled to general lien on all securities of a client, 41. 


extends to securities belonging to third party received bona fide 
without notice, 42. 


by consignor will destroy a carrier's general lien arising by 
agreement, 84. 


has particular lien for whole price of suit on any part of it, 56. 


power of unpaid vendor to sell under lien, 76. 


of amount due will render possession unlawful and will destroy 

lien, 83. 
may be dispensed with if a larger sum is demanded, 83. 


lien holder liable for theft arising through his negligence, 63. 


entitled to lien on property in respect of which he has expended 
money, skill, or labour, 55. 


entitled to lien on horse he has trained, 56. 


causes loss of lien, 80. 
express, 80. > 

implied, 80, 

by abandonment of claim for a number of years, 81. 

INDEX.. 101 

WAIVER, continued — 
implied, 80. 

by claiming only for particular lien, 81. 

by claiming to retain goods on ground different from that 

on which lien is based, 81. 
from agreement for future payment, 81. 
taking security, 81. 
not sufficient by itself, 82. 
intention of parties must be regarded, 82. 
by vendor proving for price in bankruptcy of vendee, 83. 


entitled to general lien for their charges in respect of goods 
warehoused with them, 46. 


have a right of general lien, 38. 

extends to goods of a third party if received in good faith 

without notice, 38. 
lien of, only extends to wharfage, 38. 
does not extend to labourage or warehouse rent, 38. 
not entitled to lien upon goods not actually landed upon their 

wharves, 38. 




- . 

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